Confessions of a Whistleblower: A Law Professor's Reflections on the Experience of Reporting a Colleague

Georgetown Journal of Legal Ethics, The, Fall 2007 by Kirkland, Kimberly

I. THESTORY1

"I don't remember Gary coming to my class." v

"He didn't come to Criminal Procedure?"

"I don't remember him being there."

"David, there are only 22 students in the class; it's a small room. How could you have missed a member of your tenure committee sitting in your class?"

"I know," David paused, "But he describes what happened in the class and I think the description is probably accurate ... We talked about the things he says we talked about."

"Hang on, I'm looking for Gary's class observation." I put down the phone as I dug through the piles on my desk and found my copy of the draft "Report of the Committee Reviewing Professor David Copeland's Application for Tenure."

There it was on page 3. Gary's observation was half a page long. It described the topics covered in the class, David's pedagogy, and the students' level of engagement. It was very positive, though there was a one-sentence critique suggesting that David require students to respond more precisely and concisely to questions.

"It is specific. But I just can't believe you wouldn't have noticed him if he was there. He's on your tenure committee: he's there to assess your teaching. You would have been nervous if he'd been there!"

"Maybe he saw a video of the class."

"Do you remember the class being taped?"

"No. I just can't believe he would make it up."

"You'd remember if he'd been there, David. He's no shrinking violet. I can't believe he sat in that room for an hour and a half and you didn't notice him. If you don't remember him being there, I don't think he was there."

"I can't say for certain he wasn't there ... I don't remember him being there."

"Okay. Let me think about what to do about this. I'm on my way out of town tomorrow morning to do a couple of externship visits. I'll call Jeff and see what he thinks. We have to figure out how we're going to handle this pretty quickly. We need to distribute the tenure report to the tenured faculty by Thursday-that's the day after tomorrow."

"I think I'll email Gary," said David, "I'll let him know I read the report and tell him that I hadn't realized he had come to the class but appreciate his feedback."

"That's a good idea. Let me know what you hear from him. I'll have access to email while I'm gone. I'll call you tomorrow after I have a chance to talk to Jeff."

I hung up the phone. Ugh. This was going to be difficult. Gary, Jeff, and I made up David's tenure committee. We were charged with assessing his candidacy and making a recommendation about tenure-thumbs up or thumbs down-to the tenured faculty. David was highly qualified, well liked, and well respected in every corner of the building and his application had been entirely uncontroversial. Now, he was in a terrible position. He'd read the committee's draft report recommending tenure, which included Gary's class observation. He was troubled enough that he had called to let me know he didn't remember Gary being there. But how could he accuse a tenured member of his tenure committee of fabricating a class observation? He was doing the right thing letting Gary know he didn't remember Gary attending the class. I wondered how Gary would respond. I had already concluded he hadn't been there, so I was certain David's email would put him on the spot.

I thought back to my meetings with Gary and Jeff about David's tenure. We had talked about class observations, twice in fact. In the fall there had been some debate about whether Gary and Jeff should observe David's International Criminal Law seminar on the same day. It was nearing the end of the semester and David only had a few classes left. Gary and Jeff were each only free to observe one of David's remaining classes and it happened to be the same class. Jeff didn't think they should both observe on the same day. The class was very small-seven students-and he thought it would disrupt the class if two faculty members sat in. He volunteered not to go. Jeff and I had gone back and forth about it several times.

I said I thought they both needed to go, even if it made the class a little awkward. The new tenure review process was specific: each member of the tenure committee was to observe at least one class in each of the fall and spring semesters. This was the first tenure committee I'd chaired and I helped draft the tenure policy and procedures; I wanted to follow the rules. David's tenure was uncontroversial and I wanted to keep it that way. We didn't need to complicate it with process issues. I insisted that all three of us needed to see him teach in both semesters. Jeff relented.

After the end of the fall semester I ran into David and asked him how the class that Jeff and Gary observed had gone. As it turned out, David told me Gary hadn't come to the class; nor had Gary attended either of the two remaining classes of the semester. I was ticked off, but forgot about it quickly as I worked my way through a stack of Civil Procedure exams.

Jeff, Gary, and I met again in January and we agreed that we would each observe Criminal Procedure, David's spring class. I didn't say anything to Gary about his not having seen David teach in the fall. In hindsight, I'm not sure why I didn't raise the issue. Maybe it was because there was no controversy about the class observation this time. It was a larger class and, in any event, we had plenty of time so there would be no need for two of us to observe on the same day. Maybe I was avoiding confrontation. We agreed to finish our respective observations and sections of the report by the end of spring break, which was the last week in February. Gary and Jeff were to send me drafts of their sections, and I committed to putting together a draft of the entire report for circulation to Jeff, Gary, and David.