Jerry Bergman Ph.D.

Introduction

In my case against Bowling Green State University (BGSU), the appellate court ruled against me, quoting the BGSU PPPG committee that is charged with evaluating
various faculty issues summary of findings erroneously claimed my scholarship was deficient. The 6th circuit ruled that the

district court also found that the tenure denial was based on concerns regarding the quality and relevance of plaintiff’s work. Dr. Siefert, Dr. Yonker, Dr.
Davidson, Dr. Rurke [sic], and Dr. Wiersma, for example, all testified to their negative impressions of plaintiff’s work. Although plaintiff may believe that their
evaluations of his work were incorrect, this does not negate the fact that they based their tenure votes on their negative perceptions of his work. Accordingly,
we AFFIRM the judgment of the district court.

In contrast to this false claim, no evidence was presented in court that those persons cited had even read my published work and of those few that did, as shown by the court
testimony and my colleagues’ written evaluation of my research and publications were, without exception, extremely positive. Actually it was clear that most of these persons
did not read my publications. Those persons that did were very positive. Dr. Verlin Lee, Chair of the Dept. of Curriculum and Instruction, an area in which I have published
several articles, concluded after carefully evaluating my work, that

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. …Every one 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 his, 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.1

The Chair of the BGSU Faculty Evaluation Committee, Dr. Richard Burke, stated, “The Faculty Evaluation Committee wishes to congratulate you for outstanding professional performance…We find your contribution in the areas of scholarly activity to be especially outstanding.”2 Provost Ferrari said I am “a highly prolific writer” and my research showed “diversity, creativity and breadth.”3 The administrator I worked most closely with, Dr. Horton, Associate Dean of the college, stated that I was one of

BGSU’s most talented and creative professors. I’ve known him for six years and find him to be 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 professor 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 . . . 4

The Dean of the college, Dr. Elsass, stated that I 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.5

Another faculty I worked closely with, Dr. Girona, wrote that he has read a number of my publications, and concluded that they were 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

1 Emphases mine. Letter from Dr. Verlin Lee Chairman Educational Curriculum & Instruction Department dated January 23, 1979.
2 Letter from Dr. Richard Burke, Chair Facility Evaluation Committee dated June 5, 1979.
3 Deposition of Dr. Michael Ferrari dated January 23, 1981 p. 73.
4 Letter from Dr. G. R. Horton, Associate Dean College of Education BGSU dated April 29, 1980.
5 Memorandum from David Elsass, Dean College of Education BGSU dated March 16, 1979.

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 trailblazer.6

Dr. Charlesworth stated that I am 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.7

Dr. Leslie Chamberlin, chair of Dept. EDAS, one of the most prolific scholars at BGSU, and with whom I co-authored many 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.8

Dr. Ron Coté stated that,

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.9

Dr. Coté added that the reasons my colleagues voted against my tenure was probably

6 Letter from Ricardo Girona, Associate Professor of Education, department EdFI BGSU dated May 27, 1982 p. 2.
7 Affidavit from Dr. Rosalind Charlesworth, Assistant Professor, College of Education BGSU dated October 17, 1983.
8 Letter from Leslie Chamberlin, Professor of Education BGSU dated November 27, 1979 and April 11, 1983.
9 Letter from Dr. Ron Coté, professor of Education BGSU to Dr. Paterson dated May 6, 1980.

varied but 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.10

Dr. Fyffe stated that he read many of my 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.11 (A- 69-70).

Dr. Bill Reynolds concluded that I am 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.12

Another one of my colleagues, Professor Peter Wood, Ph.D., wrote that he has read
several of my “articles that relate to areas that interest me” and concluded that I am “an
interesting and amazingly active and wide-ranging writer. Although I do not always
agree with every one of his interpretations, I have always found him to be happy to

10 Affidavit from Dr. Ron Coté, Professor of Education BGSU dated February 1, 1980.
11 Affidavit from BGSU Professor Darrel W. Fyffe dated January 23, 1980.
12 Affidavit from Dr Bill Reynolds, Professor of Education BGSU dated January 23, 1980.

discuss our differences and exhibit a clear understanding of my position.”13 And, last, the thorough UPAO report concluded that I 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.14

The Quality of My Publications

The claim by the court that my colleagues questioned the “quality” of my publications is false. The court record clearly shows that almost none of my critics read a
single article that I wrote. Nearly all of those who claim that they, at best, had only glanced at early drafts of a few articles written during my first few years at BGSU, had
essentially no substantial comment to make about them except undocumented and vague meaningless concerns such as “methodology.”

Valid criticism requires that one specify which article is being referred to, and the specific methodological or other concerns. My 300 in-press or in-print publications (I
have over 800 now), many of which I published, or at least wrote, while at BGSU, were reviewed by acknowledged experts in the field. At the minimum, they were reviewed by the editor and, as is true of most refereed journals, were reviewed by two or sometimes three reviewers. My tests and measurement book was reviewed by eight individuals before it was published. Given a conservative estimate of an average of three reviewers for each article, my publications were favorably reviewed by over 900 authorities.

Not one faculty in my department has served as a reviewer for a national journal,

13 Letter from Professor Cr. Peter Wood to Dr. E. Mansell Patterson, Professor and Chair Medical College
of Georgia dated April 24, 1980.
14 Report of the Academic Freedom Committee of the Universities for Academic Order dated January 14,
1984.

most not even for local ones (and those few who did, accepted several of my articles for publication!). Can persons who have not served in this capacity make the claim of being qualified? The faculty was thus questioning the judgment of nationally recognized experts. Furthermore, in that I have over twice the level of graduate education (credit hours) as does any other member of my department, one must question if they can judge my work.

Elected to the Graduate Faculty

In contrast to many of my colleagues I was elected to the graduate faculty, which was a “special privilege.”15 Dr. Charlesworth also demonstrates high evaluation of my
work by my colleagues.16 Dr. Reed, my department chair and formal evaluator, rated my research and scholarship “very highly…the most prolific” in the department.17 It is
irresponsible to substitute the judgment of persons who have not read my publications for those regarded by their colleagues as experts in the area and, for this reason, selected to review my articles. Can those who have not demonstrated a skill properly sit in judgment of those who have? As Dr. Zeller. Professor of Sociology at BGSU noted

Many of Dr. Bergman’s colleagues in his department … have such inadequate publication records that there is serious question about their scholarly abilities (i.e. they have not published a single article in a reputable journal in their entire career). What is the reaction to … a relatively young faculty member who has published dozens of books and hundreds of articles? Such a person will, I believe, be threatened by the appearance of a young, bright, hard-working
colleague. … unproductive faculty members will seek to eliminate productive faculty … from the faculty so that their own relative unproductivity is not made
apparent …they will seek to deny…tenure to their… productive colleagues. I believe that this occurred in the Bergman case.18

And Dr. Girona, Professor of Education at BGSU concluded that he believed there was

15 Transcript Gerald Bergman, Ph.D. vs. Bowling Green State University et. al., Case No. 86-3031 Court
Transcript, p. 729 here after Transcript.
16 Testimony of Dr. Charlesworth, Court Transcript p. 728.
17Testimony of Dr. Robert Reed, Court Transcript pp. 270-271.
18 Letter from Dr Richard Zeller to whom it may concern, dated November 1, 1983.

clear professional jealousy of Dr. Bergman. He published more than our entire
department combined, and many of our colleagues have rarely published
anything. Publishing is one of the most important activities in the university, and
was constantly stressed in our department. Most of my colleagues felt inferior to
Dr. Bergman, and concluded that their likelihood of publishing was low and thus
seemed to put forth little effort.19

Dr. Phillips, Professor of Education at BGSU, concluded that research is of primary importance in the department20 and Dr. Richard Carpenter testified forcefully that the
faculty

should have reached their decision on the basis of evidence, and if they didn’t
have evidence on which to base their decision, . . . then I can’t see [how they
could arrive at a decision although] that would imply … that the faculty member,
in absence of any other indication, should . . . be supported.21

To defer carte Blanche to the faculty’s “judgment,” effectively negates the Civil Rights Act in an academic situation. Nemenwirth v. U. of Wisconsin 22noted the basis for
the faculty decision must be scrutinized (requiring, for example, that all the faculty had read most of my over 300 publications, could intelligently comment thereupon, and had visited my classroom—which not one of my critics did.23 How can discrimination ever be proved if all the faculty have to do is simply provide the person denied tenure a putative “hearing” that does not have to follow even minimal due process? The hearing should be examined to determine whether or not it conformed to the law and the university’s own rules.

Publications not Required at BGSU for Tenure

A few colleagues alleged non-relevancy and quality of my publications, yet Chair Reed testified that the “minimum criteria for tenure” was the completion of the terminal

19 Letter from Ricardo Girona to whom it may concern dated May 17, 1981.
20 Deposition of Dr Trevor Phillips dated May 28, 1981 pp 8-9.
21 Testimony of Dr Richard Carpenter Transcript pp. 377-378
22 769 F. 2d 1235; 1985.
23 Letter from Ralph Wolfe, professor of English, BGSU to whom it may concern, dated March 25, 1983.

degree and “some evidence, although it…has not been qualified … of effective teaching, research and service to the university.”24 Not even one publication is required, only
“some evidence of effective teaching.” As many, if not most, tenured faculty in the department when I was denied tenure, had no publications whatsoever, this cannot be
used as a reason.25 Jim Davidson received tenure with no publications.26 Siefert testified that when he received tenure he “didn’t have any refereed articles” nor a book, nor even one in progress.27 Dr. Rita Keefe testified that she likewise did not have a single book published then nor since.28 Dr. Yonker, who was hired the same year that I was, admitted that he had never written a book, was not in the process of writing one, and when he achieved tenure had only “three, four, something like that” articles.29
Drs. Burke, Marso, and most other tenured faculty had either no articles or very few when they were tenured, and most still have none or very few. Aside from myself,
the department’s most prolific author was Dr. Campbell who testified that he had “around ten” articles published when he was tenured30 and only one co-authored book (actually it was a collection of readings that he edited, considerably different from publishing a book) plus his doctoral dissertation.31 Yet he claimed that, as the most prolific published author, he voted in favor of me.32

Dr. Darrel Fyffe, who has served on PPPG and reviewed the credentials of about 75 faculty33 noted that I had more publications than any other candidate who came
through the three years that he served, had excellent student evaluations, and had evidence of service comparable to other successful tenure candidates.34 He noted the

24 Testimony of Dr Reed, court transcript p. 281
25 Holliman v. Martin 330 F. Supp 1;1971; Ferguson v. Thomas 430 F. 2d 852;1970.
26 Testimony of Dr. Jim Davidson court Transcript p. 777.
27 Testimony of Dr. George Siefert Court Transcript p. 502-503.
28 Court Transcript p. 873.
29 Testimony of Dr. Jim Davidson Court Transcript p. 455-456.
30 Testimony of Dr. Campbell Court Transcript p. 433-434.
31 Testimony of Dr. Campbell Court Transcript p. 435.
32 Testimony of Dr. Campbell Court Transcript p. 443-444.
33 Affidavit of Dr. Darrel W. Fyffe dated February 28, 1984.
34 Testimony of Dr. Darrel Fyffe Court Transcript p. 725.

average number of faculty publications for a person up for tenure was two to eight.35
After having read many of my articles, both before and after they were published, his
assessment was very positive.

The Claim that my Publications were not Relevant to my Teaching Assignment

A glance at the titles of my articles will demonstrate that my articles were fully relevant to what I taught at BGSU. I taught in the education department and most of my
publications then were directly about education. Over 100 of my articles directly relate to education and psychology, the area that I taught in at BGSU. As I will document in the next section, the claim that my publications are not relevant is irresponsible because most of my critics testified that they did not even read my publications, thus they are in no position to make a judgment of either their relevance or their quality.

My Critics Never Read my Publications

Dr. Campbell also testified that he had never “formally reviewed any” of my publications36 claiming that my article in the prestigious The Futurists journal was the
only publication that he had read, but had no comment on it.37 Dr. Keefe, also not in my area, claimed she only “skimmed” some of my articles, and her only claim was that they were not related to my discipline “in most instances.”38 This claim is false: many, if not most of my publications, were clearly in my area, as is evident from cross examination39 and as testified to by many others, including my department chair, who noted that “some” of my publications were not related to the area I was then teaching, and “some” were in religious journals, but even these were not necessarily irrelevant.40

35 Testimony of Dr. Darrel Fyffe Court Transcript p. 726.
36 Testimony of Dr. Campbell Court Transcript p. 432.
37 Testimony of Dr. Campbell Court Transcript p. 433.
38 Testimony of Dr. Rita Keefe Court Transcript p. 433.
39 Testimony of Dr. Campbell Court Transcript pp. 870-873.
40 Testimony of Dr. Campbell Court Transcript p. 272.

Also, how can anyone possibly judge the relevance of an article without reading the article? Bob Yonker testified that he did not read any of my publications,41 yet
claimed he had concerns over how I carried out my research, admitting that he could not be more specific (how can he know this if he never worked with me on research and
never read my publications?). He admitted that, early in his employment, I gave him “rough drafts” of articles (actually two or three theoretical articles on reading, none of
which contained any research methodology) and one article later. Dr. Yonker also admitted that he did not know if I incorporated his feedback, nor did he compare the
original with the final product, which he admitted he never asked me to show him.42 Although he claims 43he critiqued “maybe nine different documents” during his first few years, he could not recall any criticism except “methodological issues,”44 and was not concerned about the quality of my publications.45
Asked if he felt I followed necessary methodological principles, he stated, “not in all cases.” Does any researcher in “all cases”?46 Vague concerns about methodology by
only one faculty member during my first few years at BGSU, which were never conveyed to me, are hardly reasons to terminate a faculty—especially in that most of my colleagues have never published any research, thus used no methodology. Although Dr. Yonker criticized my textbook, he did not know if he reviewed it prior to the tenure vote and could not recall any specific valid deficiencies.47 Of what value are vague comments based on rough drafts of a few articles out of a total of 300? One or two or even more of my articles may be weak, but this does not negate the value of others; any author can expect the quality of his work will vary. Even the great writers occasionally bomb. Dr. Yonker admitted that he did not segregate refereed from non-refereed publications and was not even aware that many of my publications were religious.48

41 Testimony of Dr. Bob Yonker Court Transcript p. 448, 450.
42 Testimony of Dr. Bob Yonker Court Transcript p. 450.
43 Testimony of Dr. Bob Yonker Court Transcript p. 459.
44 Testimony of Dr. Bob Yonker Court Transcript p. 450.
45 Testimony of Dr. Bob Yonker Court Transcript p. 450-452.
46 Testimony of Dr. Bob Yonker Court Transcript p. 463.
47 Testimony of Dr. Bob Yonker Court Transcript p. 463.

Concerns about my Textbook

The concern in court was over only one of my over 80 books, monographs and book chapters then in press, in print, or in preparation, yet I was the only faculty in my
entire department who had ever produced a single authored book not based on his or her dissertation.49 Dr. Fyffe noted that, during the three years he was on PPPG, he remembers only one person who had published a hard cover book.50 And as my book did not come out until after I was denied tenure, the decision could not have been based on the quality of this work. It was vetted by at least eight reviewers, published by one of the most prestigious publishing houses in America (Houghton Mifflin of Boston), adopted by scores of colleges, purchased by hundreds of libraries, and I have received numerous letters and feedback relative to its high quality.51

Only one review, published in an obscure foreign journal, was critical (unusual in publishing). Among the favorable mentions was by Dr. Robert Ebal, one of the foremost
researchers in the field who, impressed with my work, cited me as an “authority” in an article published in the prestigious Journal of Educational Measurement.52 Dr. Wiersma testified that Dr. Ebal is an acknowledged expert in the field of measurement, and that this journal is very reputable.

Dr. Richard Zeller (who also published a book with Houghton Mifflin) testified that my book was “dummied down” on the demands of the publisher.53 Most criticisms
relate to this concern, and thus cannot be appropriately leveled against me, but to the publishing industry. Dr. George Siefert, who said he only read a draft of a chapter

48 Testimony of Dr. Bob Yonker Court Transcript pp. 451-452.
49 Testimony of Dr. Robert Reed Court Transcript p. 289.
50 Testimony of Dr. Darrel Fyffe Court Transcript p. 727.
51 Testimony of Dr. Darrel Fyffe court Transcript p. 727.
52 Testimony of Dr. William Wiersma Court Transcript pp. 896-897.
53 Testimony of Dr. Richard Zeller Court Transcript pp. 915-918.

before I was denied tenure, was the only person in my department who claimed during the court proceeding to have more than glanced at this book.54 One cannot base an
evaluation on a single person’s view that was based on examination of only “a particular”portion of a draft of one chapter.55 This is all he “glanced” at because he “had enough …to worry about this particular section…”56 This alleged evaluation was not given to me in writing (or even verbally) as the BGSU charter requires.57 When asked if he read other sections before my tenure meeting, he replied, “…I had something. Now, again, I don’t know.” Then he later claimed that he “definitely had, by that time, fully read the book” which was impossible because it was not published until after I was denied tenure; he later admitted he read only a manuscript.58 His testimony has no validity and clearly demonstrates that he lacked basic knowledge of the field, not even understanding the concept of bitiles.59

Dr. Siefert admitted that he did not read any of my published articles, was only “aware” of them, and that “other people could pursue his publication record. That was
not of interest to me.” Given this admission how could he possibly evaluate me? He did not even try to separate refereed and non-refereed articles.60 As to my competency, Dr. Siefert, who taught in my area, in answer to the question, “Do you have any reason to question Jerry Bergman’s competence in the area that he taught?” said “Not really.”61 He stated only “one thing” was of concern, namely the statistics chapter in my textbook. In that my assignment at BGSU was not teaching statistics classes, and this criticism is totally irrelevant (I did teach statistics at the University of Toledo for six years, though, and also contributed to a statistics text) because I never taught a course in this area at

54 Testimony of Dr. George Siefert Court Transcript p. 492-493.
55 Testimony of Dr. George Siefert Court Transcript p. 476.
56 Testimony of Dr. George Siefert Court Transcript p. 513.
57 Testimony of Dr. George Siefert Court Transcript p. 505.
58 Testimony of Dr. George Siefert Court Transcript p. 477.
59 Testimony of Dr. George Siefert Court Transcript p. 479.
60 Testimony of Dr. George Siefert Court Transcript pp. 494-495, 514.
61 Testimony of Dr. George Siefert Court Transcript pp. 504; 514.

BGSU, thus Dr. Rita Keefe testified that, although she admitted that my textbook was not in her subject area, she claimed that she “reviewed” my textbook prior to the tenure meeting, which was impossible because it was not published until after I left BGSU.62 No one else claimed to have read the book or manuscript before the tenure vote. Dr. Adelia Peters, admitting she did not teach courses in my area and relied upon those who did,63 yet was aware that the vote of those in the area I taught was six for me and only two against me! In summary, not one faculty could articulate a single valid concern about competency based on evidence.

Dr. Richard Zeller, in contrast to my critics, completed a thorough evaluation of this book.64 Yet, the court relied upon the opinions of those individuals who either had no
knowledge in the area, or did not read the book, and the one person who claimed he skimmed a rough draft several years before it came out. University attorney Mattimoe
did not question Dr. Zeller’s expertise.65 Dr. Zeller, whose credentials were fully equal to Dr. Wiersma’s, testified that my textbook showed that I had “a strong level of
understanding of the material,” adding, “Not only did the text indicate that, but my conversations with him indicated that as well.”66

Paradoxically, the court objected to Dr. Zeller’s testimony claiming that, in a religious discrimination case, the quality of publications is not at issue!67 It turned out to
be very much an issue in the final court decision and the conclusion that my publications were “inadequate” was held valid by the appellate court! This was the substance of Dr. Zeller’s testimony, a highly published and respected BGSU professor who, not only reviewed my book in detail (as not one person in my department did), but was very

62 Testimony of Dr. Rita Keefe Court Transcript p. 865.
63 Testimony of Dr. Adelia Peters Court Transcript p. 833.
64 Letter from Dr. Richard Zeller dated November 1, 1983.
65 Testimony of Dr. Richard Zeller Court Transcript p. 906.
66 Testimony of Dr. Richard Zeller Court Transcript p. 912.
67 Testimony of Dr. Richard Zeller Court Transcript p. 919.

knowledgeable about my work and competence for several reasons including because I was a student in two of his graduate classes when I was working on my second Ph.D.68

My Publications.

The blind review process (which reduces the likelihood of bias due to race, religion, etc.) of my now over 800 publications means a positive review of almost three
thousand colleagues. For a review of the published feedback of my publications see the paper Review of My Scholarly Publications.
68 Testimony of Dr. Richard Zeller court transcript p. 920