Last year, we discussed the controversy surrounding UCLA accounting professor Gordon Klein after he refused to exempt black students from his final exam and sent a pointed rebuttal to students asking for the “no harm” exam. This response, which was mocking, led to a formal investigation and a major campaign to have him fired. Now he is suing.
Klein is a professor in the Anderson School of Business and has taught at University of California Los Angeles (UCLA) for decades. He was suspended and placed under police protection in his home. The response was certainly mocking in tone, more so than I would have considered appropriate. However, the suspension, investigation, and death threats against Klein reinforced the fear of many in the academy of a raising orthodoxy on campuses.
Following the death of George Floyd, on June 2, 2020, Klein received a student email, which read:
“The unjust murders of Amhaud Arbery, Breonna Taylor, and George Floyd, the lifethreatening [sic] actions of Amy Cooper, and the violent conduct of the UCPD in our own neighborhood have led to fear and anxiety which is further compounded by the disproportionate effect of COVID-19 on the Black community. As we approach finals week, we recognize that these conditions will place Black students at an unfair academic disadvantage due to traumatic circumstances out of their control.
“We implore you to mandate that our final exam is structured as no harm, where they will only benefit students’ grades if taken. In addition, we urgently request shortened exams and extended deadlines for final assignments and projects. This is not a joint effort to get finals canceled for non-Black students, but rather an ask that you exercise compassion and leniency with Black students in our major.”
The letter further asked Klein to give high letter grades to black students in a course graded “on a curve.”
Klein wrote back to one student that he was being asked to make a distinction that he could not possibly make. This is the entirety of the message:
Thanks for your suggestion in your email below that I give black students special treatment, given the tragedy in Minnesota.
Do you know the names of the classmates that are black? How can I identify them since we’ve been having online classes only?
Are there any students of mixed parentage, such as half black-half Asian? What do you suggest I do with respect to them? A full concession or just half?
Also, do you have any idea if any students are from Minneapolis? I assume that they probably are especially devastated as well. I am thinking that a white student from there might possibly be even more devastated by this, especially because some might think that they’re racist even if they are not. My TA is from Minneapolis, so if you don’t know, I can probably ask her.
Can you guide me on how I should achieve a “no-harm” outcome since our sole course grade is from a final exam only?
One last thing strikes me: Remember that MLK famously said that people should not be evaluated based on the “color of their skin.” Do you think that your request would run afoul of MLK’s admonition?
Thanks, G. Klein
The controversy led to immediate demands for Klein to be fired. Thousands signed a petition that declares Klein must be fired for his “extremely insensitive, dismissive, and woefully racist response” and “blatant lack of empathy and unwillingness to accommodate his students.”
UCLA launched an investigation and issued a statement that “We apologize to the student who received it and to all those who have been as upset and offended by it as we are ourselves.” It also agreed to extend all exams, presumably for all students. I stated earlier that the extension of the time was a good idea for the school as a whole and I can certainly understand the school objecting to the tone of the response at a time of great unrest and trauma in our society. However, the email was a poorly crafted effort by Klein to object to what he viewed as an unworkable, race-based system of accommodation. One can certainly disagree with those objections, but the principle of academic freedom is to allow such views to be stated without fear of termination.
UCLA insists that the investigation and suspension were not due to his refusal to give preferential grading but rather the “tone” of Klein’s email. With over 20,000 calling for his termination, he was placed on mandatory leave on June 3. Nevertheless, he was cleared on July 22 by the school’s Discrimination Prevention Office and returned to the classroom.
Putting an academic on leave for the “tone” of an email is a departure from the common practice to address such issues in meetings with department heads. I think that there was a valid basis for such a sit down and admonishment given the high emotions and trauma felt in that period.
The lawsuit raises a difficult issue, however. According to the site College Fix, Klein is seeking significant damages by citing the loss of over $500,000 in private consulting contracts. That is used as a baseline for projecting a loss of $10 million over time. (I have not found those figures in the complaint itself).
However, the university can argue that a school must be able to suspend and investigate faculty without fear of such lawsuits. It ultimately cleared Klein though he was later denied a merit-pay raise increase. Courts may be reluctant to micromanage such decisions.
Since he was cleared, the complaint is based on the fact of the investigation and the harm it caused to his reputation. While there are good reasons to question whether a suspension was warranted, a court could conclude that the university investigation or public statements were not the cause of any reputational damage. Rather the university can argue that the original response drew the criticism and campaign against Klein. Moreover, the university will argue that it has a right to speak out against harmful rhetoric or actions.
The most direct statements came from Dean of the Anderson School Antonio Bernardo:
Dear UCLA Anderson Community:
On Tuesday, June 2, we were alerted to troubling conduct by one of our lecturers in the undergraduate accounting program. Our concerns have now been shared with all appropriate UCLA investigative offices.
Providing a safe, respectful and equitable environment in which students can effectively learn is fundamental to UCLA’s mission. We share common principles across the university of integrity, excellence, accountability, respect and service. Conduct that demonstrates a disregard for our core principles, including an abuse of power, is not acceptable.
The lecturer is currently on leave from campus. His courses have been reassigned to other instructors.
If anyone in our community ever feels unfairly treated or maligned because of identity, I urge you to contact Asst. Dean Heather Caruso or Professor Brett Trueman, our Equity, Diversity and Inclusion leader for students, staff and faculty. You are also free to report an incident directly to UCLA’s EDI office.
Further, I ask that each of us – students, faculty and staff – help foster a strong Anderson culture of inclusivity that will assure effective learning for all students. In the months ahead, we will also work together to identify initiatives that Anderson might undertake to advance greater equity in the broader community.
I deeply regret the increased pain and anger that our community has experienced at this very difficult time. We must and will hold each other to higher standards.
I hope we can use this event as an opportunity to recommit to respect, equity and compassion in all of our words and actions.
Best, Antonio Bernardo Dean and John E. Anderson Chair in Management
The statement uses terms like “troubling conduct” that may be hard to get traction with a court, but the clear import of these and other remarks was to paint Klein as intolerant or insensitive or even racist. Ironically, it is the “tenor” of Bernardo’s letter that will be the focus of the litigation — just as it was the tenor of Klein’s email that led to his suspension.
Klein argues that the school painted his comments as violating school policies of equality:
Although the Dean characterized Plaintiff’s email as “inexcusable” and “very hurtful,” the Student himself seemingly shrugged off Plaintiff’s questions as merely “rhetorical,” resumed his studying, and earned a course grade of “A.” The Student later proceeded to enroll in yet another class taught by Plaintiff even though he instead could have selected multiple other classes not taught by Plaintiff. Also, these emails sent by the Dean characterized Plaintiff as not supporting equality or the School’s “core principles,” which was patently false. In fact, Plaintiff’s conduct had unfailingly upheld equality and other Anderson School “core principles,” including those manifested by his supervisor’s guidance that professors not grant special exam accommodations.
Klein advances seven claims:
1. BREACH OF CONTRACT
2. VIOLATION OF RIGHT TO PRIVACY BY PUBLIC DISCLOSURE OF PRIVATE FACTS
3. VIOLATION OF RIGHT TO PRIVACY BY PLACING PLAINTIFF IN A FALSE LIGHT
4. RETALIATORY DISCRIMINATION IN VIOLATION OF LABOR CODE § 1102.5(c)
5. COMMON LAW RETALIATION IN VIOLATION OF PUBLIC POLICY
6. NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
7. BREACH OF EMPLOYER’S STATUTORY DUTY OF POLITICAL NEUTRALITY
What is clear is that the treatment of the complaint was clearly harmful for Klein as an academic. Indeed, the damage is likely lasting and could have been avoided with a more sensitive and neutral treatment by the university.
Here is the complaint: Klein v. Bernardo