BGSU File: Summary of Issues

In the United States Court of Appeals

For the Sixth Circuit

(

Gerald Bergman, Plaintiff (

vs. ( Case No. 86-3031

Bowling Green State University (

et. al., Defendants (

(

Appeal of Judge Walinski's Findings of Facts and Conclusions of Law (R-79), by paragraph number. Both the plaintiff and the defendants agree that a central issue is related to the right to not conform to norms that plaintiff concludes are non-functional or even dysfunctional. As the defendants admit, "Dr. Marso, who voted for plaintiff put it, plaintiff "Listened to a different drummer" (TR 846). Many of the concerns the faculty had with plaintiff fall into the amorphous category of 'non-collegiality.'" Furthermore the defendants claim that "as indicated by the court in Gottleib vs. Tulane University, 37 FEP cases 116 (Eastern District Louisiana, 1985), that it is a proper consideration in determining tenure" (Brief of Appellees, p. 30). The plaintiff argues that this is not a valid reason to terminate a University faculty.

Dr. Bergman's Scholarly Performance

BGSUs charter requires that tenure is to be granted or denied based only on three criteria, teaching research and service. Therefore, this area will be reviewed first. Dr. Bergman's colleagues' written evaluation of his research and publications has been, without exception, extremely positive. Dr. Verlin Lee, Chair of the Dept. of Curriculum & Instruction, an area in which Dr. Bergman has published several articles, carefully evaluated his work and concluded :

I've known Dr. Bergman since he has been at Bowling Green State University. I visited his office numerous times for long conversations and have read many of his articles dealing with subjects of mutual interest . . . I've also observed him ...in the classroom...Dr. Bergman is one of the most prolific writers I've ever met in all of my professional career. He writes not only material relevant to his own field...but in literally dozens of journals ....Everyone of these articles are well written and show much...thought. I found Dr. Bergman to be extremely honest and open . . . extremely prepared to teach his own classes and also gives individual attention to any student who cares to visit his office (Dr. Lee's office was close to mine, thus he was able to observe this). I consider Dr. Bergman one of our finest [faculty] additions and I am sure he will add much to the field of research . . . [in summary] I have never met a person with a more varied background of interests or a man whose mind is so extremely brilliant and fertile. (A-57)

The Chair of the Faculty Evaluation Committee, Dr. Burke, stated, "The Faculty Evaluation Committee wishes to congratulate you for outstanding professional performance...We find your contribution in the areas scholarly activity to be especially outstanding" (A-58). Provost Ferrari said Dr. Bergman's research showed "diversity, creativity and breadth " and that Dr. Bergman was "a highly prolific writer" (D-50). The administrator Dr. Bergman worked most closely with, Dr. Horton, Associate Dean of the college, stated that Dr. Bergman was one of BGSU's

...most talented and creative professors. I've known him for six years and find him to be a very personable and one of the most stimulating conversationalists that I have ever met... Dr. Bergman has an insatiable thirst for knowledge coupled with the desire to write and disseminate his scholarly efforts... he is the most prolific writer on our faculty of almost 200 members. He writes well on a variety of subjects and has an excellent publishing record in refereed and non-refereed journals. Dr. Bergman also maintains good rapport with his students. He likes to teach and does it well. In short [Dr. Bergman] is a creative, flexible person who teaches . . . and writes well . . . (A-59)

The Dean of the college, Dr. Elsass, stated that Dr. Bergman was

currently...the most prolific faculty author in the college [and] I must concur with positive endorsements received from Dr. Reed and PPPG Council ...[that he has] demonstrated and documented fulfillment of basic criteria-effective teaching, scholarly and creative productivity and service (A-36).

Another faculty Dr. Bergman worked closely with, Dr. Girona noted that he has:

read a number of his publications and find them thoroughly researched, well thought out, and well written ... His test and measurement book was excellent.... I felt that he had achieved what few test and measurement books had been able to accomplish, namely to convey the essentials (and more so) of the field in a very readable fashion, avoiding much information...which is commonly taught but usually absolutely useless in the field. The textbook is truly an innovation, and such a radical departure from the mainline test and measurement books that it may have trouble becoming accepted. I am certain, though, that in time this approach will become more and more common. In short, Dr. Bergman is a trail blazer (A-33).

Dr. Charlesworth stated Dr. Bergman was:

...a gifted, versatile and energetic person who has devoted his career to scholarly pursuits. His papers are well researched, thorough, scholarly, interesting and thought provoking. He carries on a vast correspondence with other scholars in this country and abroad, seeking and exchanging ideas and information. He was clearly the most productive member of the entire department (A-100).

Another one of Dr. Bergman's colleagues, Dr. Wood stated:

I have also read several of Jerry's articles that related to areas of interest to me. He is an interesting and amazingly active and wide-range writer. Although I do not always agree with every one of his interpretations, I have always found him to be happy to discuss our differences and exhibits a clear understanding of my position (A-56).

Dr. Leslie Chamberlin, chair of Dept. EDAS and one of the most prolific authors at BGSU, and with whom Dr. Bergman co-authored several articles stated

Dr. Bergman is truly a research-minded faculty member who works quite diligently at certain areas in research including those of crime and delinquency, suicide ... Jerry Bergman is a prolific writer ... a member of many professional associations ... [and] my association with [him]... has been pleasant and informative. We have written many professional articles together... my observations ...(is) that he works well with students. They ....relate to him and he has good rapport with them. I've had many conversations with Jerry during his years at BGSU and have found him to have a humanistic attitude towards others ... (A-60-63)

Dr. Ron CotŽ stated,

Jerry impresses me as consistently polite, empathetic and sincere. Professionally he is exceptionally competent, tireless and persistent; his publications record is probably the most impressive in our college. As an academic, he is very intelligent, interesting and informed (A-74).

In his affidavit, Dr. CotŽ added that the reasons Dr. Bergman's colleagues voted against his tenure was probably:

...varied and undeterminable...criticisms... seemed to center on irrelevant points such as appearance, philosophy. Dr. Bergman, on at least two major criteria, has achieved notable success: motivation of students and publications ... The expressed, most significant criteria of any university has always been publications. Dr. Bergman cannot be found lacking in this area. Substitute criticisms apparently have been made for personal, unprofessional reasons ... Dr. Bergman would seem to be eminently qualified for ... tenure. Not to grant such a continuation ... seems to me extremely unjust and prejudicial [and] unprofessional and not in keeping with university criteria for continuation of employment .... personally I am very much concerned about the loss of such a colleague; his abilities are a valuable asset to this university (A-66-68).

Dr. Fyffe stated that he read many of Dr. Bergman's publications, and

...His record of professional service is known by me to be excellent. Based upon my three years service upon the College of Education's Personal Policy and Professional Growth Council, I am utterly amazed that tenure could be denied. Few faculty members ...had a record of performance which matches Jerry Bergman's. He has published in excess of 100 times...I can find no explanation for refusal of tenure. It would be difficult to find faculty at the full professor with such varied accomplishments, let alone a man at the lowest academic rank (A-69-70).

Dr. Bill Reynolds concluded that Dr. Bergman is,

...an ...above [average] teacher with a variety of publications to his credit. I have valued at least two of his publications as average and above. He is diligent in maintaining office hours and frequently consults with students. ... Dr. Bergman is a functioning faculty member whose performance seems to be above average... (A-71-72)

And the thorough UPAO report concluded:

Dr. Bergman was clearly the most productive member of the department both in the quantity and quality of his publications in both refereed and unrefereed journals. [and] ... over a dozen colleagues came forward to support Dr. Bergman with official affidavits stating that his teaching and research was clearly outstanding and that the main, if not the only, reason for his termination was his religious beliefs, publications and interests (A-26-27).

Teaching Performance

The fact that Dr. Bergman had virtually no student criticism was acknowledged, and the court evidently accepted this: To the question "in the promotion ..... and .... tenure hearings .... was the fact that Dr. Bergman had practically no student criticism a factor [brought out]?" (T-431-432). Dr. Phillips answered, "I think people .... defending him did bring that up." In answer to the court's response, "He had no student criticism?" (unusual in a university) Phillips said, "Apparently not, sir." (T-752-753)

Chair Reed testified that he knew of no concerns about Dr. Bergman's teaching and considered his preparation satisfactory (T-270). To the question, "Do you recall many students complaining about Dr. Bergman," he answered, "No, I do not." In his role as department chairman, all complaints would come to him and he testified that he was unable to recall any concerns worth bringing to his attention (T-301-302). Dr. Yonker testified that it is the chair's responsibility to communicate deficiencies to faculty, and that he did not convey any concerns about Dr. Bergman to the chair; nor did virtually any other faculty (T-456; A-232).

The Provost testified Dr. Bergman's only "deficiency" was not receiving "an affirmative vote of at least two-thirds of all the tenured members of the department . . ." (T-579). His adverse judgment was not based on his credentials (T-580-581,616). Both Drs. Yonker, and Siefert said that although they did not observe Dr. Bergman in the classroom (T-450) they had no reason to be concerned about his teaching (T-450-452,514). Rita Keefe neither observed nor discussed with Dr. Bergman his rationale for using religious reading assignments that Dr. Bergman allegedly used to which she objected (T-873). Although she (T-872) claimed that she heard some vague "complaints" that were carried to Chairman Reed, he testified that he received no such concerns (T-272-273; A-227).

Malcolm Campbell testified that he had never observed Dr. Bergman's teaching, and had input from only two former students, one favorable, the other "unfavorable," he also noted that it is not unusual for students to make negative comments about professors (T-431-432). Trevor Phillips testified:

Question . . . did any of your students comment to you about Dr. Bergman in any way?

Phillips: Yes.

Question. . . . could you relate to me what comments you've heard from the students of Dr. Bergman?

Phillips. . . . as with many of us . . . the reviews were mixed.

Question. Some liked him; some didn't?

Phillips. Yes. Apparently Dr. Bergman came over as either being very... liked or appreciated orÑI don't think the word is disliked. . . .[as] is true any student vis-a-vis any teacher... those who voiced an opinion were on one side or the other... I didn't go out and solicit [opinions]; therefore when students... talk to a professor about another, they usually have some strong views one way or the other. (D-38-39)

George Siefert and Trevor Phillips also testified they had never observed Dr. Bergman's teaching (D-21; T-494-495); and Ron Marso testified that he had never heard a student complaint (T-845-846). Adelia Peters alleged only two student "concerns," both of which were minor, and neither of which she related to Dr. Bergman or even to his chair (T-829). Thus how could Dr. Bergman possibly have responded to them, assuming they were valid concerns actually received from students? She also admitted that most professors receive both positive and negative student feedback, and the comments about Dr. Bergman were not unusual (T-831). When Dr. Bergman was asked for student feedback that he had received, the court concluded (T-46) the answer was "Pure hearsay." Why was the testimony of the one or two professors who alleged negative student criticism, even though they admitted they did not convey it to him (and the criticism was, at best, minor) not also regarded as "pure hearsay"? Although the judge concluded "Student comments are... pure hearsay . . .". (T-932) the alleged "negative" student comments were admitted as evidence, as reflected in his ruling. The hundreds of positive written student comments in Dr. Bergman's vita were also objected to by Mattimoe because he was "not able to produce ... the original" (T-934). This is not true, if the court requests, we would be glad to supply the originals (A-220-226). It is injustice to permit a few alleged "negative" verbal student comments, but not hundreds of highly favorable onesÑeven those in writing (T-934)?

It is appropriate for the court to determine if the faculty's judgment is "collaborated by teaching evaluations" (Hooker v. Tufts University 37 FEP 515) which were in Dr. Bergman's case uniformly superior for the relevant evaluation time (A-204-219). A few alleged "mildly negative" student commentsÑa small number for 7 yearsÑis obviously not a basis for concluding deficiencies exist (T-432, 831). Proper evaluation of teaching effectiveness, according to the written guidelines of the University, requires "peer and/or supervisory evaluations based on first-hand observations and/or acquaintance with staff members' teaching skills" (T-687). None of Dr. Bergman's detractors, including Jim Davidson, experienced first-hand observation or were even acquainted with his teaching style or methodology. As no critic had first hand knowledge, none were in a position to evaluate Dr. Bergman's teaching (A-232). Conversely, those who had observed Dr. Bergman's teaching were uniformly positive. Dr. Reed noted:

I've received only one written complaint from one of your students. This was shared with you and represents maybe one of a half dozen that I have received about faculty in the seven years I have been chair ...I cannot remember any major oral complaints that students have said directly to me ... Indirectly, other faculty in the department have 'claimed' that students have expressed complaints to them. I have asked these faculty to have any student with a complaint concerning you to bring it directly to either me or you. So far, no student has.

Dean Horton stated (A-229) that he had, "no record of student complaints . . . and has no other such communication in any of my correspondence" about Dr. Bergman during his 7 years at BGSU. The Graduate School Dean stated (A-228) that Dr. Bergman had, " . . . no record of student complaints and . . . no such communications in our general correspondence file." Dr. Charlesworth concluded that Dr. Bergman is

...an excellent teacher , based on my observing his actual classroom performance... stimulating and creative... clear and concise ... Having shared the office next to him, I can attest to the vast amount of time and attention he gives students. The interactions I witnessed were always warm and positive and the feedback from his students ... was only positive. His student ratings for the last several years ....were consistently exceptionally high (A-100).

Dr. Fyffe concluded "based on personal observation" that Dr. Bergman:

...is an excellent teacher. My specialization is in Curriculum and Instruction and my position involves constant and critical observation of teaching candidates to determine their strengths and potentiality. Jerry clearly ... exceeds the requirements in this area... His student evaluations were consistently high....I observed his teaching, interviewed some of his students...(concluding) Jerry made good use of the chalk board .... His vocal and facial expressions are quite good, varying, yet consistently energetic and emotive. Many opportunities were given for students to seek clarification or extend ideas. Jerry moved about the front of the room while lecturing . . . kept visual contact with all segments of the room and elicited responses to many questions. The mood of the class was varied, sometimes responding with laughter to humorous situations and at other times reflectively thinking about probing questions. The 28 students present seemed interested and generally attentive ... with most taking notes on a regular basis. This class was probably the best single presentation of sociograms that I have ever seen. During the times I have studied in, and, even, when I have taught EDFI 402 ... the presentations have not been as organized and understandable. Jerry used numerous personal, student, and research examples to enliven the situation ... (A-98, 230-231)

The department chair stated in his evaluation that when he visited his class Dr. Bergman was

....well organized and knowledgeable about material being covered. He structures his classes to provide his students with many individual and group activities. He spends considerable time in preparation for class and uses a variety of hand-out material...spends considerable time outside of class working individually with students in his office ... [in conclusion] ... Jerry [has] demonstrated that he is a most effective teacher (A-54).

Dr. Peter Wood, visited Dr. Bergman's class once in conjunction with his research. Part of this involved asking students to comment on their satisfaction with college life. He concluded that his "students generally reported that his classes were very interesting and conducive to learning." Typical of comments solicited by his open-ended questionnaire were the following:

'Very interesting class . . . your method of instruction should be used as a model for the entire staff at BGSU. Keep up the good work and thanks for remembering us as individuals and not just as ordinary students' . . .'He makes the class more useful and personal to me' . . . 'I like the assignments of making up the different kinds of surveys . . . I like the way... [Dr. Bergman] relates personal experiences to the class. 'I like the open discussion in class and the examples... [Dr. Bergman] uses to get a point across. I feel that this information is more useful than just facts and book material.' ' . . . the discussion sessions . . . are interesting and help me remember the point being stressedÓ (A-55-56).

A professor who taught with Dr. Bergman, Sheldon Carsey, Director of Environmental Studies, stated he found Dr. Bergman:

to be a hard worker and interested in the welfare of... students. The class we are involved [in] leads me to believe that he is well received ... and that he contributes well to their education (A-289).

Documented Due Process Violations

Due process usually requires that the person be given valid reasons for discharge and have an opportunity to present his side of the story (Goss v. Lopez, 419 U.S. 565;1975). Dr. Bergman's case required much more than this. The Supreme Court has distinguished between purely academic, and disciplinary dismissal ( such as unethical behavior ) stating "Misconduct is a very different matter from failure to attain a standard of excellence . . ." (U. of Missouri v. Horowitz et al. 435 U.S.;1977). Dismissal for unethical behavior involves one's reputation, and therefore requires a procedure more similar to a criminal court process, bringing "an adversary flavor" to the hearing. The Supreme Court (Bishop v. Wood, 426 U.S. 341 1976) also noted that one's employment circumstances affects whether one has a protective liberty interest, stressing that publicizing reasons for adverse employment action, which amounts to a stigma, does infringe upon one's liberty. In Board of Regents v. Roth (408 U.S. 564) the Supreme Court ruled that publicizing reasons puts a case in a different category than if no public disclosure for the discharge is made.

This would clearly apply to this case. Dozens of articles have been published in local and national magazines, many of them containing highly inflammatory and inaccurate statements made by the university and its agents (A-75-91, 140-160). Various memos that contain numerous false allegations were circulated and became known among the faculty, and have since been reflected in numerous published articles. All this has seriously adversely affected Dr. Bergman's attempts to achieve employment and clear his record. These professors, including the University's attorney, have no right to slander Dr. Bergman's name, circulate malicious letters, cause them to be printed, or give false statements to the newspaper that obviously adversely affect his reputation and ability to make a living. Dr. Bergman's reputation and honor have been severely impaired by the negative publicity and the wholly erroneous statements that university attorney and administrators made to the press, and spreading them amounts to character assassination and malicious slander (T-73;A-75-91,140-160)(see U. Of Missouri v. Horowitz, 435 U.S.1977). Mr. Mattimoe made much of the difference between academic and legal due process, but if the university formulates a written set of rules and procedures they are bound by law to scrupulously follow them (Woolley v. Hoffman-La Roche 491 A 2d 1257;1985; Thomson v. St. Regis Paper 685 P.2d 1081;1984; Ferraro v. Koelsch 368 N.W. 2d 666; Hooker vs. Tufts University 37 FEP). Although untenured professors can be discharged for a variety of reasons except constitutional, if the college's own rules dictate that certain procedures are to be used when an instructor is not reappointed, it must scrupulously follow them (Mabey vs. Reagan 537 F.2d 1036;1976).

Charter required academic due process is thus legally obligatory. BGSU Charter expert Dr. Carpenter stressed that evaluation must elucidate in writing one's progress toward tenure, any perceived shortcomings, and if one was meeting the department's expectations (T-366-368). This is clearly the intent of the Charter because it was derived from AAUP principles. The purpose of probation is for the probationer to work with the department so as to meet their standards. Lack of evaluation is not only a major due process violation, but a negation of the whole intent of probation. Without it, according to both the Charter and the court testimony, the required probation hasn't occurred (T-367).

A statement developed by the National Faculty Association in conjunction with NEA (A-170-177), notes due process requirements have their origin in common law. They are to insure "fair and equitable treatment" by protecting as far as possible against arbitrary, capricious, or inequitable actions, "consistent with a fair and equitable treatment guaranteed to all American citizens by the first, fifth, and fourteenth amendments to the Constitution." These guidelines specifically state that the reasons for an adverse decision must not be arbitrary or capricious, but clearly relevant to competence to adequately perform the responsibilities of ones position. It stresses that the decision "Must not either directly, or by their effect, deny the individual the right to exercise any rights under the Constitution . . . [or cause] retaliation for such exercise" (A-176). The faculty openly objected to Dr. Bergman exercising his Constitutional rights, such as his right to author and publish a monograph by Phi Delta Kappa titled, Teaching About the Creation/Evolution Controversy (293).

Due process requires that the respondent have specific accusations, the opportunity to face his accusers, to respond to charges, and have an opportunity to refute the evidence used against him. While at BGSU, as is shown by the court testimony, Dr. Bergman was aware only of vague concerns, and this only through the grapevine, rumor, or innuendo. The document further stresses that "reasons and timely notice be given before action is taken." Dr. Bergman was never formally given valid relevant reasons except "a lack of two-thirds faculty vote" in his favor, nor appropriate documented evidence relative to his tenure denial (A-186).

Furthermore, it is "the burden of the institution to substantiate its claims and justify its actions through presentation of proper, relevant, and sufficient evidence" (A-186). Unsubstantiated, vague or erroneous accusations, rumor and assumptions were used to support an action that is clearly contrary to the documented evidence. Dr. Bergman was not able to present this evidence at his hearing because the charges have never been delineated as required. Thus, he was unable to "hear and see all the evidence, cross examine any person giving evidence . . . and present [his] own evidence to refute the charges of [his accusers]." The AAUP guide further states that, "the individual has a right to appeal this decision to a neutral third party (such as the American Arbitrary Association)." Dr. Bergman was never given this right. The document concludes that,

Violation of civil, professional, and human rights by college[s]... is a wide-spread phenomena [witness the long list of DuShane Fund cases and AAUP's long list of censored institutions] . . . and in view of the serious and long-lasting personal and professional damage done to individuals affected by current hiring and dismissal practices, all institutions of higher education ... must ... adopt genuine due process safeguards .... (A175-176).

Other due process requirements include a probationary period, defined as a period when the professor's work

. . . is under evaluation to determine whether or not it meets known, pre-determined standards of scholarship and teaching ability . . . During this period . . . he has a right not to be denied renewal of employment for arbitrary, capricious or frivolous reasons, or for reasons not related to known standards of performance, or for no reason at all

... Regular, formal evaluation of the performance of the probationary staff member should be carried out on the basis of established standards . . . [and] the institution has an obligation to provide every assistance possible [to help one overcome difficulties, before taking adverse action against him] (A-175-176).

Aside from objections to Dr. Bergman's religious beliefs and conclusions in certain publications, no valid relevant difficulties were ever directly delineated while he was at BGSU, thus obviously no assistance was ever made to overcome alleged "deficiencies." Tenure, the document stresses, "must be based upon relevant criteria." Much totally irrelevant criteria was used as a reason for Dr. Bergman's termination, such as his conservative dress (T-270, 580, 758-759, 733, 797).

AAUP standards ( A-178-183) that "nearly every university in the country...follows ..." (T-346-347) and are almost uniformly adhered to by courts in an effort to support accepted professional standards, were also clearly violated. AAUP guidelines are not legally binding, but the University Charter, that was molded from them, is considered an extension of the faculty contract, and is thus legally binding (Franklin and Marshall v. EEOC 1985; T-349). The university is therefore obligated to follow their own written guidelines, including the necessity for detailed, written, relevant, documented annual evaluations, that was proved, and the court ruled, were never provided.

This report (A-180) notes that direct evidence of discrimination rarely exists, and thus must be ascertained from a failure to give valid, acceptable reasons for nonrenewal upon the faculty member's request (which, in spite of repeated written requests, including from the president, were not given by BGSU in writing or otherwise), from deviations from procedures normally employed by an institution (and over a dozen deviations can be documented in this case). The chief concern of AAUP is academic freedom and proper procedures, including necessary hearings and due process. "Fairness throughout is seen as undergirding principle... the university should treat the faculty member... with good will in trying to reach these decisions" (T-348).

A major evidence of discrimination is unequal application of standards, or disparate treatment. The court in Namenwirth v. U. of Wisconsin 769 F.2d 1235 (1985) notes:

To prove in Title VII [42 U.S.C.A. ¤ 2000e et seq.] disparate treatment case that employer's proffered motive for its action is not worthy of belief, evidence of a comparative sort is appropriate; if others were hired or promoted though by same reasoning they ought to have been excluded, then the motive is a "pretext" for discrimination. Civil Rights Act of 1964, ¤ 701 et seq., as amended, 42 U.S.C.A. ¤ 2000e et seq. In a Title VII [42 U.S.C.A. ¤ 2000e et seq.] disparate treatment case alleging discrimination in tenure, comparison evidence is appropriate (although)... such comparisons may be more difficult in ... academic employment decisions...they (are still often)... essential to a determination of discrimination. Civil Rights Act of 1964, ¤701 et sez., as amended, 42 U.S.C.A. ¤ 2000e et seq.

This requires comparisons of the person denied tenure with other faculty (a school cannot claim inadequate teaching if the person alleging discrimination had teaching evaluations similar or better than those of non-protected faculty who were granted tenure) or if standards traditionally viewed as important would have "strongly suggested a different result." No comparisons whatsoever on the appropriate criteria were made in court or elsewhere between Dr. Bergman and other faculty members, and all efforts to do so were successfully blocked by the University. Jim Davidson, for example, who was granted tenure about the same time Dr. Bergman was denied, had no publications, often poor student ratings and, at best, an average record of service (T- 777).

Dr. Bergman's performance must be compared with the performance of other recently tenured faculty members in the same department, as required in cases on sex and race discrimination (A-273). This approach is the required standard (Cussler v. U. of Maryland ) 430 F.Supp 602 (1977)). Yet the court seemed unaware that religious discrimination is proved primarily by comparative data, as is evident by comments such as "I think we are going too far afield with what they did with somebody else. We are talking about Gerald Bergman" (T- 735). To prove disparate treatment, one must make comparisons as to how similarly situated persons not in the protected class of the claimant are treated (Mozee v. Jeffboat 746 F.2d 365; 1984).

Discrimination can be determined only if performance is compared and/or evidence of "inadequate evaluation procedures and provisions for due process, the failure to state reasons for nonreappointment, or the statement of vague reasons..." exists (A-181). The court has refused to enforce these standards in this case, even though race or sex discrimination are proved by focusing on these very factors.

The University's Allegations

A review of all of the written evidence shows all of the universities allegations to be totally false. Each of these allegations will be considered below. It is clear that Dr. Bergman's distracters were clearly on a "fishing expedition," looking for whatever dirt they could find, valid or invalid. They repeatedly made, at best, innuendoes and, at worst, numerous false charges. Dozens could be mentioned, but three that were successfully squelched will suffice.

The allegation that Dr. Bergman was falsely claiming credit for an article that he had published under a pseudonym was spun around the faculty. Dr. Bergman was never given a chance to respond to this, and finally the university itself wrote to the publisher, confirming that Dr. Bergman had indeed written the articleÑyet faculty continued to believe and spread this lie (A-12). They also claimed that he had not written a certain book chapter in a book edited by Dr. Calvert Dodge. At his deposition they produced a copy of this book, and tried to corner him. The edition they had though, was not the one with his chapter (D-4). Another allegation was that Dr. Bergman was not a co-author of a workbook. The university again tried to prove Dr. Bergman a liar by producing the wrong bookÑhe co-authored the instructor's guide, as it clearly stated in his vita and on the cover of the book itself (D-5-6). These rumors were squelched only after his tenure was denied because the allegations were brought up at Dr. Bergman's deposition, and he was then given a chance to respond. This, of course, is not the case with the new allegations brought up at the trial itself. If they had, the judge likely would have concluded that he falsely claimed credit for a chapter that he did not write, and falsely claimed co-author status of a book.

Another example is an advertisement that the University falsely claimed listed Dr. Bergman "as a faculty member at BGSU" (T-211). BGSU was printed below Dr. Bergman's nameÑwhich means only that Dr. Bergman was connected with the university. Dr. Bergman was then a BGSU graduate student, thus was affiliated with the University in a formal way. Dr. Bergman signed the contract, completed the book, and sent them the final manuscript while on the faculty, and the book came out a few months later. Dr. Bergman has no control over their decisions relative to how he was listed (Karlen v. N.Y. Univ. 464 F. Supp 704(19). When Dr. Ferrari inquired to the publisher as to what happened, they sent their explanation, noting that Dr. Bergman did not misrepresent himself. Nor did he have any input in the advertisement, and did not even see it until it was published. Furthermore, it is clearly wrong (and hardly ethical) for Dr. Ferrari, John Mattimoe and others to claim that Dr. Bergman was listed as a BGSU faculty member in this advertisement, when it did not list Dr. Bergman as such. A publication lag of a year or so is not uncommon, and it is normal for publishers to list one's university affiliation when one wrote the article or when it was accepted. Publishers commonly list an authors affiliation when the book was written, completed or accepted for publication, even though it may not come out until a few months after one's formal affiliation as a faculty member has terminated.

Numerous accusations were brought out in court, which, even although not verified, were likely assumed to be true. The judges findings contain scores of inaccuracies and wrong informationÑeven some basic information is incorrect. Dr. Bergman taught in the Educational Psychology and Tests and Measurement areas. Mattimoe inferred that Bergman taught Educational Psychology at Oakland Community College when he claimed he taught Introduction to Psychology (T-226). The college could easily be contacted for verification to establish that he, indeed, taught not education psychology, but introduction to psychology, child development, etc.

Contract Allegations

The defendants claimed that Dr. Bergman was only a temporary employee from 1974 to 1978. Whether Dr. Bergman was a probationary or a temporary employee from 1974 to 1978 is one of many documented internal contradictions. A memo from Chair Reed (T-46) clearly stated he was then in his "fourth of sixth years toward tenure"(T-52; A-127); another says his "second year of six" (A-136). This contradicts the allegation that he was a temporary employee because, as stated on the contract, a temporary contract does not lead to tenure (T-307). Dr. Bergman was told verbally, his chair testified, and numerous memos stated, that he was in a tenure track position, not a temporary position as stated on the contract itself. Mattimoe ridiculed this contention, noting that most of Dr. Bergman's contracts were checked "temporary" not probationary (the box below it). On the '76-'77, '77-'78 and '78-'79 contracts a "temporary contract" is defined as an appointment for "a specific period of time and ... does not lead to tenure" (A-2-10). Why than did Dr. Bergman go up for tenure? Why was he given these temporary contracts? As per the agreement, he should have been tenured in his sixth year, as BGSU did not meet their notification deadline (A-127, 136). Jim Davidson was tenured for this very reason. Dr. Bergman repeatedly experienced this difficulty Ñhe simply did not know what or who to believe, and even the written rules were constantly violated (T-278-279). He inquired about this contradiction, and was told he was on a tenure track, and to sign the contract; these documents reflect a serious inconsistencyÑis this ethical?

Dean Elsass' reservations were solely because Dr. Bergman did not receive the support of the department and not, as implied, because of reservations about performance, ethics, or other concerns (T-702-703).

For these conclusions, the judge obviously relied heavily upon the defendant attorneys' Proposed Findings of Fact and Law, not upon the court testimony or the documents presented. Not one person testified that they had first-hand knowledge of documented ethical violations as delineated here. And of those concerns raised, most were seen as invalid, even by the defendant, and for this reason were not included in their Proposed Findings of Fact and Law. The allegations in paragraph 12 are all patently false because the faculty evaluation committee voted to terminate Dr. Bergman long before most of these issues surfaced, and before Dr. Bergman had in print a single article under his name.

The area he taught in then, educational psychology, also voted to terminate him before most all or all of the alleged ethical concerns existed (A-128-137). Thus the real reasons for termination must be concerns that existed before this date (late 1975), and the alleged reasons that occurred after this date cannot be valid. Dr. Bergman was given another contract because the faculties' vote was overturned by the administration. No written reason for their negative vote was provided, although Dr. Bergman repeatedly asked for a formal explanation. Concern's over his religious beliefs, though, were repeatedly mentioned (T-532,533,739,737,738,741,745,749,852,861,959).

Dr. Bergman was then given a terminal contract in 1976 because it was alleged that he had not completed his Ph.D., and for no other reason (T-276). If this is true, he was the only faculty in the department terminated for this reason (Richard Burke, Jim Davidson, Peter Wood, Rita Brace and numerous others did not have a Ph.D. during much or most of their probation, and were not given terminal contracts; Peter Wood even left the university, completed his doctorate, and was rehired with tenure). Dr. Bergman in fact had at this time completed all the work for his Ph.D., and when verification was supplied, the contract was changed (A-127). Why was verification not asked for before a terminal contract was issued? Colleges cannot require a minority to follow a standard that is not applicable to all other similarly situated persons (Ferguson v. Thomas 430 F. 2d 852: 1970).

As to the allegedly incorrect contract, Dr. Bergman obviously cannot know exactly what transpired, but seriously question if it was "incorrect." A letter to Hollis Moore stated that Dr. Bergman was appointed at the rank of assistant professor in the department EDFI; (T-31) and Dr. Bergman assumed that this is what the person who wrote the letter intended. Further, Dr. Bergman was offered this contract and both the "Acting Chairman of the Department of Education . . . and his appropriate Selection Committee" recommended it (A-1). Is it ethical to retroactively claim a dozen years or so later that this contract was incorrect? University due process requires that once issues are dealt with, they are to be dropped.

No fault was ever placed upon Dr. Bergman for producing the allegedly incorrect contract, only for accepting it years later (T-277). Dr. Bergman assumed that in evaluating his background (several years part-time teaching experience, co-author of several publications, etc.) the university had decided to offer him the higher rank which Dr. Bergman believed he merited. If one assumed one's car was worth $4,200, and was offered $4,500, it is not unethical to accept the higher amount. The rank he would be offered was"up in the air"Ñonly a likely level was given. Nor is it unreasonable to assume that given his three years research experience and, about the same part-time teaching experience, nine years of college and a signature away from his Doctorate, a salary of $11,000 for a large state university professor was hardly excessive, even in 1973. Is it unethical for him to assume that his credentials merited an offer of $11,000 instead of $10,500? And his inquiries to Dr. Harrington, the former dean, confirm that this was a reasonable assumption (T- 29, 33).

Allegations about Putative Vita Inaccuracies

Many false claims were made about Dr. Bergman's vita. For example, the statement "claiming to be expecting a second doctorate from BGSU in psychophysiology when he was not enrolled in the Psychology Department" is manifestly untrue. This issue is from Dr. Bergman's 1978 promotion vita. Tom Bennett stated that when he was on the committee that considered Dr. Bergman for promotion, which was in 1978, he called the Psychology Department who, he claims "could find no record" of Dr. Bergman "as a graduate student there" (T-550; 815). Dr. Bergman's transcript proves that at this time he was a graduate student taking courses in the Department of PsychologyÑand was such since the winter quarter of 1977 until he later transferred to the sociology department (A-129-130).

The statement "claiming to be a therapist when he had no license" is hardly unethical when no license is required to be a "therapist." The judge does not specify the type of therapist Dr. Bergman claimed to be, but this likely refers to a vita which noted that a role he filled at BGSU was "as a therapist" which, in the context, clearly refers to a pedagogical or educational therapist as defined by the Dictionary of Education (Prof. Good pp. 290) as one who corrects problems, "particularly in the academic area, through specialized educational techniques." As "working at a pain center as a therapist" obviously refers to a "pain therapist," dealing with the pain problems or "working at a stroke rehabilitation center as a therapist" likewise could only refer to a physical therapist; from the grammatical construction the statement, "working as a teacher and as a therapist," could only refer to a pedagogical therapist. The term "therapist" is thus fully appropriate, and the syntax is proper because it is redundant to modify the word therapist such as "working as an educator, teaching, and as an educator diagnosing and treating learning problems." Dr. Bergman was highly involved in this accepted field dealing with learning problems, specifically utilizing cognitive mapping and other learning therapy techniques (T-78), and his colleagues knew this (See Educational Therapy in the Elementary School by Patrick Ashlock, Springfield IL, Thomas Pub. A-18-20).

The American Heritage Dictionary of the English Language defines a therapist as a specialist in conducting any therapy to treat illness, disability, or malfunction, that includes licensed M.D.s to nonlicensed auxiliary staff. The word is from the Greek qepupeutik—s and means to minister or attend to another's needs. Even hydrotherapists (using water to treat or ameliorate a variety of problems) are properly called therapists. Common use of the term supports this, as is obvious from the following quote (A-11-13).

What short-term therapists are finding is ... that to some extent the supportive relationship itself can help ease emotional difficulties. A congressional study . . . found there was no difference in the efficacy of therapy as administered by M.D. psychiatrists, psychologists, psychiatric social workers or lay counselors, such as clergymen.

Even Ann Landers noted: "A person with no college degree can call himself (or herself) . . . a therapist"(A-14). Jim Davidson claimed to be a "counselor" during the first few years Dr. Bergman was at BGSU although he did not then have a license. Dr. Carpenter was thrice referred to as a counselor. Why did he not protest, noting that he is not licensedÑwhich Ohio law now requires to use this term (T-350, 368, 372)? He even thrice used the term to refer to his AAUP work (T-353-355). If confusion exists regarding the use of this word, asking the writer what is meant is the only proper way to deal with the concern. Why was this never formally done, as required by the University Charter, so Dr. Bergman could have had a chance to respond (T-402)? Even in court this issue was not raised, thus Dr. Bergman could not even here respond to it!

It is also manifestly untrue that Dr. Bergman claimed to have "published books" that were not published. What books are being referred to here, we can only assume, but likely refers to concerns resolved during his successful promotion. The original promotion papers, submitted 1-27-78, clearly state that these books were "in process" and this is underlined (A- 164-166). It also states the "expected publication date" for both. The first one was not in print, and those colleagues concerned knew this (T-475-476; 507). The second was a revision of his Ph.D. thesis, which was already published and thus can appropriately be listed as such (A-135). Dr. Campbell listed his thesis as publishedÑand it was ethical for him to do so (T-434).

In the revised version as well, it states on page 7b, "Books in Process" and lists expected publication dates (A-167-169). At this time Dr. Bergman had about twenty books, monographs and book chapters in press or in print, and most of these were not listed. One would hardly not list books that were completed or accepted for publication, and then falsely claim to have others. As Dr. Bergman was the most productive faculty member in the college, and quite likely in the university, Dr. Bergman would obviously not need to make false claims as to publications (A-36). Dr. Bergman understated his background partially because he had published well beyond that required, and was told that to list all of his publications may cause jealousy problems. The vita used for promotion only listed publications, not in press or in print status, and from an academic evaluation viewpoint essentially no difference exists between a publication accepted for publication and one that is in publication (Carr v. U. of Akron, 465 F. Supp. 886 pp. 893;1979). Both can be listed (T-687). Furthermore, this issue surfaced only during promotion (T-309-310) and the court stressed as to these concerns,

. . . I have told you promotion is not the issue in this case, any testimony we take about his promotion [is not relevant]. His promotion was eventually granted, and the testimony about the promotion is useless. All we are talking about is denial of tenure [and that] promotion is [not] an issue in this case; it is denial of tenure ... why are we wasting time talking about promotion evidence? [as Dr. Bergman was] finally granted promotion... there is no issue here ... the tenure ... which was denied... is the issue in this case (T-781, 742-743).

A few faculty testified the vita issue was not resolved in their minds and affected their tenure vote. It was resolved in Dr. Bergman's favor by his Chair, the college-wide committee, the Dean, the Provost and others, so why was the issue not put to rest? (T-307, 403, 690-698, 705-706; D-43-45). To the question: "If there were any questions about adherence to ethical standards," under "the university's governance procedures" should the concerns of the faculty as to "the ethical-unethical charges be brought to the attention of the probation or faculty?" Dr. Carpenter answered, "Absolutely . . . it would be a star chamber otherwise" (T-402). They were never raised to Dr. Bergman except via the grapevine, yet were obviously not valid because they were fully resolved in his favor (T-307, T-295, T-698).

AAUP guidelines are adhered to by nearly every American university, including BGSUÑor so they claim, but did not follow them in this case (T-347). AAUP's major rule is that "the university should treat the faculty member fairly and with goodwill in trying to arrive at these decisions" (T-348). Minimal fairness requires concerns be elucidated and that faculty members be given an opportunity to respond. As Dr. Bergman repeatedly stated in his deposition and testimony, when Dr. Bergman gave his working vita to his colleagues as part of the promotion packet, he stressed that this document was prepared for his own use, and thus was not complete. Allowed only a few days to prepare, he barely had enough time to complete the promotion papers (which were correct and never questioned) and he did not have a vita, so used his rough incomplete draft, and has never denied such (T-57, 58, 61, 82-83).

The committee stated that no problem existed in using this document, and would ask for clarification if questions arose. Why did they not do so? If a document is not clear, or a reviewer believes it may be incorrect, the proper response to approach the person who prepared it. It is grossly unethical to respond in this way to a document that was, at best, supplemental material (A-92-95). Dr. Bergman's promotion should have been based on the promotion papers, not a rough draft that was obviously such considering the typos, omissions, and many hand corrections in the document. This was adequately discussed in numerous memos and Dr. Bergman was exonerated by the promotion committee that voted to promote him, and he assumed the matter was dropped. Even the university's attorney, in discussing this with his attorney, agreed that it was resolved, claiming only that vague "lingering doubts" were left. Yet it was resurrected.

Because all of these concerns were satisfactorily resolved in Dr. Bergman's favor during his promotion process, it is clearly unethical to bring them up again. Thus, in answer to the question "If ethical questions had been raised earlier and resolved earlier, can we assume that ethical standards had been adhered to when we start considering the other three criteria?" Dr. Carpenter said, "Yes. . . otherwise, it is double jeopardy . . ." (T-403). Dr. Bergman's department chair, Dr. Reed, testified that if any deficiencies existed, they would have been conveyed to Bergman, yet none were expressed. He stated, "That's right . . ." in answer to "If there are any deficiencies along the way, ... you would have . . . told him . . . " (T-307). Dr. Reed also testified that if a professor was performing unsatisfactorily, written communication would be required (T-287).

Why were no written communications sent to Dr. Bergman relative to the alleged vitae inaccuracies or other concerns if this was in fact an issue? The vita concerns existed only during promotion, and were resolved in his favor (T-309-310) and no new similar concerns surfaced between when Dr. Bergman was promoted and applied for tenure (T-310). Dr. Reed also stated that he was not aware of any lingering rumors because they were all satisfactorily dealt with (T-311). Even the Ohio Civil Rights concluded that Dr. Bergman was not denied tenure because his "vita was inaccurate" (A-236).

All promotion concerns were resolved in Dr. Bergman's favor by the promotion committee, and he was promoted. Reed agreed as to concerns relative to misrepresentation that "Once the PPPG [the college-wide appeal committee] recommended promotion we assume the PPPG had resolved those concerns for themselves, at least" (T-295). Dr. Reed concluded that the vita concerns were a misunderstanding, not intentional, "benign" and not deliberate misrepresentation (T-296-297; D- 1-2). Dr. Bergman has admitted that his working vita was not as clear as possible, but the ambiguity was hardly misrepresentation. This information should have been conveyed to the department to forever lay the issue to rest. Yet the issue was not fully resolved there (T-294). In answer to the question,"whatever concerns about the vita which may have been resolved at the PPPG level may not have been ... at the department level," Dean Elsass said, "That's true" (T-698). The issues he cited was the second Ph.D. and his misranking in various publications (something that Dr. Bergman has little control overÑsee Karlen v. N.Y. Univ. 464 F. Supp 704).

Because this misinformation affected the tenure vote, the court asked, "Has any thought ever been given to giving him another tenure hearing, and if . . .[not], why not?" (T-705-706). Dr. Elsass replied that there was no need for another hearing because Dr. Bergman was exonerated by the college level committeeÑand his promotion was forwarded to the Administration. The Dean testified and wrote in his recommendation that, with the submission of clarification, the "requirements for promotion had been met" (T-689). He noted that at the college level clarification was still needed, but the college-wide evaluation committee was satisfied that no breaches of ethical conduct occurred, and so recommended promotion (T-690). The need to repeatedly deal with false accusations demonstrates that a valid reason for Dr. Bergman's termination does not exist, and thus what appears to be one was contrived.

No concerns existed relative to any papers that Dr. Bergman prepared for tenure (T-309-310). In fact, no claims, memos, etc., exist relative to any vita concerns after promotion (T-694). The proper way to deal with this is to communicate to the faculty that all concerns have been answered, and specifically offer the evidence and rationale thereof. Is it not unethical to let them believe, for example, that Dr. Bergman deliberately misrepresented himself on publications when publishers' letters and other evidence proved that this was not the case, and the judge ruled in harmony with this? The judge's awareness of this problem is reflected in his statement:

One of the things that is bothering me ... Dr. Elsass, is that the FPCC [the final appeal board] made a decision based on misinformation that was not Dr. Bergman's fault ... that [for] his promotion, he submitted a vita which had listed a bunch of publications where he was [mis]ranked ... the faculty members ... took umbrage with that and then when it came up for tenure, some of the matters had been straightened out but not all of them. Then he got an unfavorable vote ... based on misinformation. (T-707-708)

This is exactly our contention. Why was Dr. Bergman not formally informed of their exact concerns, and permitted to respond to those that were still alive? As Dr. Bergman's Chair, Dean and Provost, according to discussions with them and their testimony, concluded that these matters had been taken care of, why were "Some of the matters . . . straightened out but not all of them"? Why was Dr. Bergman not given an opportunity to straighten out all of them? The court noted that

"all through the case...the last four days,we have been hearing that one of the reasons for the unfavorable vote by the tenured teachers is that Dr. Bergman misstated his status in his publications.... He did not do that..."[Dr. Ferrari then answered] Yes, I would agree..."(T-627-628)

The majority of the department promotion committee did not conclude that the vita was "inaccurate," since most voted in Dr. Bergman's favor (D-3). Many professors admitted that they still do not know the facts about these concerns; George Siefert, instead of investigating what occurred, admitted he "shouldn't say anything because I really don't know." (T-512) As to ethics, Siefert admitted he personally did not verify his concerns (T-507-509). And Dr. Marso concluded that, after hearing both sides, he resolved his doubts in Dr. Bergman's favor (T-853). Even Provost Ferrari did not view vita concerns as "a major factor," and if he was not convinced valid ethical concerns existed, why was tenure denied (T-636)?

Religious Discrimination Evidence

The judge dismissed the massive evidence of religious discrimination in this case with one sweep of his judicial hand: "The court finds that the faculty was not influenced by inappropriate considerations of Bergman's religion." In cases of race or sex discrimination, it is not necessary to demonstrate the seriousness of these problems, and the court should be well aware of the fact that religious discrimination is a major social concern and problem, both in its extent and historical duration. Recent documents conclude that the history in this part of the world has been one of "officially sanctioned religious bigotry, political intolerance and suppression of ideas . . . entire families who practiced their religion were imprisoned" (A-182). De-classified documents reveal that the Justice Dept. took "Draconian action against anyone who dared to continue practicing" certain religions (A-182).

Even violence is not rare against religious conservatives, especially on American state college campuses. Thousands of documented examples could be cited to illustrate what a recent event shows. Benjamin Hart, while at Yale, wrote an article criticizing what he thought was favoritism for certain groups and discrimination against others, such as religious conservatives. The article, although admittedly insensitive, "precipitated a physical attack on Hart by Stefan Smith [a college administrator] . . . Smith was finned $250, but the Dartmouth faculty showed its colors

. . . three days later by voting 113-5 to censor, not the assailant but [Smith]." (Fund, 1986:53) The vote well illustrates the wide spread intolerance towards certain religious conservatives. In condoning this violence, one is condoning intolerance. It is thoroughly documented that a wide spread intolerance against religious conservatives exists in most colleges and universities (A-274). Examination of college textbooks reveals that atheism is openly taught or assumed. One not familiar with current textbooks may question this conclusion, but extensive research has empirically confirmed this (A-190-191 and Addendum).

According to Donald Sills, President of The Coalition for Religious Freedom, religious persecution is now occurring "in unprecedented numbers" and "at least 8,000 cases" are now in litigation, mostly involving conservatives [Quoted in Smith, Human Events, Aug. 31, 1985, p. 8]. Amnesty International concluded that religious intolerance is "rife around the world" (A-187-189). Many works have been written by well-known conservative Christian leaders who, in essence, stress that it is so serious in America, that civil disobedience cannot be ruled out. It would be tragic if the civil rights movement of the 1960s was repeated, only this time with religious minorities as the main participants-See A Time for Anger, The Second American Revolution, and other works that portend what may happen if the courts do not appropriately respond to the basic human rights of this group. Their rulings have tended to reflect prejudice against the human rights of conservative Christians, creationists and others, and biased in favor of a non-theistic position, often termed secular humanism (See Whitehead, Tex. Tech Law R. Vol X, No. 1, 1978).

Discrimination because of Dr. Bergman's creationist beliefs and involvements is blatantly obvious in this case. Although about 44% of the population are creationists, we know of not a single out-of-the-closet creationist faculty at BGSU (A-192-199). Research has found extremely few out-of-the-closet creationists at any state university anywhere who, as creationists, were openly granted tenure, especially in the life sciences. Those with tenure most often become creationists after they earned it, and most have problems after they become creationists. A short review of the massive evidence that creationists are one of the most hated minorities in academia is found in the addendum.