Chan v. Miami Univ.

[This opinion has been published in Ohio Official Reports at 73 Ohio St.3d 52.]

CHAN, APPELLEE, v. MIAMI UNIVERSITY, APPELLANT.

[Cite as Chan v. Miami Univ., 1995-Ohio-226.]

Universities and colleges—Civil rights—Graduate student's formal complaint of

sexual harassment against tenured professor—Employment contract

provides procedures "for dismissal or removal from tenure"—Removal

procedures not followed and contract breached, when.

(No. 93-2374—Submitted February 22, 1995—Decided August 16, 1995.)

APPEAL from the Court of Appeals for Franklin County, Nos. 93AP-213 and

93AP-309.

__________________

{¶ 1} Miami University, appellant, granted tenure to appellee, Dr. F. Gilbert

Chan, as professor of history in 1976. Chan's employment contract was evidenced

by letters of appointment for each year in which he was employed by the university.

The letters of appointment incorporated "the rules, regulations, and procedures as

published in the Miami University Information Manual [the 'manual'], and official

actions of the Board of Trustees."

{¶ 2} In January 1990, a female graduate student filed a formal complaint

of sexual harassment against Chan. The complaint was filed with the university's

Office of Affirmative Action. Following an investigation by the university's

Affirmative Action and Human Resources Office, a hearing was held pursuant to

Section 3.71 of the manual. The hearing committee found that Chan had violated

the university's policy prohibiting sexual harassment and recommended to the vice-

president that Chan be suspended for two years without pay. The university's acting

executive vice-president determined that Chan should be terminated from his

position rather than suspended. That decision was appealed to the university

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president, who affirmed the vice-president's decision. Chan's employment with the

university was terminated on August 10, 1990.

{¶ 3} Chan filed a complaint against the university in the Court of Claims,

asserting breach of contract, and age and sex discrimination. At trial, the age and

sex discrimination claims were dismissed, and the matter was heard by the trial

court. The court found in favor of the university on the breach-of-contract claim

and held that it lacked jurisdiction to consider whether Chan's due process rights

were violated.

{¶ 4} Both Chan and the university filed timely appeals, which were

subsequently consolidated. The Franklin County Court of Appeals reversed the

trial court, holding that the university had breached its employment contract with

Chan and had denied him due process by terminating his tenure, using the

procedures for resolving a formal complaint of sexual harassment provided by the

manual, and remanded the cause to the trial court.

{¶ 5} The matter is now before this court pursuant to the allowance of a

motion to certify the record.

__________________

J.C. Shew & Associates and J.C. Shew, for appellee.

Betty D. Montgomery, Attorney General, and Gregg H. Bachmann,

Assistant Attorney General, for appellant.

McTigue & Brooks and Paula L. Brooks, urging reversal for amicus curiae,

Ohio National Organization of Women.

__________________

MOYER, C.J.

{¶ 6} The issue presented by this appeal is whether the university breached

its contract when it terminated Professor Chan's employment pursuant to the

university rule prohibiting sexual harassment rather than the rule providing for

termination of tenured faculty.

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{¶ 7} We first address the university's procedure for determining sexual

harassment claims. Section 3.211 of the manual, which was incorporated into the

contract between the university and Chan, states the following with respect to the

working and learning environment of the university:

"It is Miami University's position that employees and students should have

a working and learning environment free from intimidation, hostility, or other

offensive conditions. It is the policy of the University that sexual harassment shall

not be condoned or permitted. It is also the University's policy that false

accusations of sexual harassment shall not be condoned or permitted, such behavior

also being considered a form of intimidation. Individuals found to be in violation

of this policy shall be subject to appropriate disciplinary action, including written

warning, suspension, or dismissal, within the guidelines of the grievance

procedures of the appropriate authority. (Approved by the Board of Trustees

October 15, 1981)."

{¶ 8} Section 3.212 of the manual defines "sexual harassment" and suggests

informal procedures to resolve complaints.1 Section 3.212(E) provides that if

informal resolution of the complaint is not achieved by the Office of Affirmative

Action with the assistance of appropriate divisional affirmative representatives,

then the university's formal procedures for affirmative action grievances provided

in Sections 3.7 and 3.71 of the manual are available. A careful review of Section

3.71 is critical to our determination, as it was that section of the manual rather than

the section that expressly provided for termination of tenured faculty (Section

3.555) that was used to terminate Chan's employment.

{¶ 9} Section 3.71 of the manual, in combination with Section 3.211,

provides the grievance procedure available to any employee and student of the

1. In 1991, the university amended Section 3.212 to strongly urge informal resolution of sexual

harassment complaints by setting forth a procedure for mediation. The amendment does not apply

to the grievance herein.

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university who believes that his or her rights under the university's affirmative

action policy have been violated. It begins with several precatory paragraphs:

"By means of the procedures described below, Miami University provides

an opportunity for any employee to express a grievance and receive a fair hearing.

"***

"Most complaints can be resolved through discussion between staff member

and immediate supervisor. Individuals are encouraged to engage in direct

consultation with each other so that the problem can be solved through conciliation,

if possible. Any retaliation against an employee for having made a complaint is

grounds to file a second complaint based on retaliation."

{¶ 10} That language is followed by the formal procedures that are available

if informal procedures are not successful.

{¶ 11} Under the formal grievance procedures, set forth in Section 3.71 of

the manual, a complainant may file a written complaint with the university's

Affirmative Action Officer, who provides the respondent with notice of the

complaint, conducts a formal investigation of the complaint to make a finding of

probable cause, and communicates that finding to the complainant and respondent.

{¶ 12} If the formal complaint is not resolved and a finding of probable

cause is made, then a hearing is set and a hearing panel of three persons is

established from a pool of twenty-five retired university employees. Section 3.71

does not provide either the complainant or the respondent with the right to be

represented by an attorney at the hearing, but each has the right to have the

assistance of an advisor or counselor from the university faculty or staff. The

hearing committee presents its findings and recommendations to the vice-president

to whom respondent reports or the president's designate, who makes a decision on

the recommendation. Either party has a right to appeal the decision of the vice-

president to the president, who has the final decision-making authority on the

grievance.

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{¶ 13} It is important to note that all of the aforementioned procedures are

subject to very short deadlines; even the complainant is required to file the

grievance within forty-two calendar days from the date of the alleged act of

"discrimination." It seems clear that in adopting Section 3.71, the university

believed it was important to resolve quickly complaints against university

personnel that arose out of alleged acts of discrimination or sexual harassment.

{¶ 14} We next review the sections of the manual that provide expressly for

termination of a tenured appointment. Section 3.428 of the manual provides that

"[t]ermination of an appointment with tenure prior to retirement may be effected

by the University for only two reasons: adequate cause or financial exigency."

"Adequate cause" is defined in subsection (A) as follows: "Adequate cause relates

to performance of a faculty member in his or her professional activities as teacher

or researcher."

{¶ 15} Section 3.553 of the manual, entitled "Termination of Appointment

or Tenure for Cause," and Section 3.555, entitled "Procedures for Disciplinary

Action," describe the circumstances which might occasion termination for cause

and indicate the procedures to be used. Section 3.555 states, "[t]he following

procedures shall be adhered to in taking disciplinary actions against a member of

the instructional staff." The procedures for disciplinary actions applicable to

nonreappointment and termination of appointments are summarized as follows:

"When a question arises as to taking disciplinary action against a member of the

instructional staff ***," a private conference following a notice to staff member is

conducted with the president, the provost, appropriate academic dean and

department chair, and the staff member is entitled to be represented by legal

counsel. After the conference the president may dismiss the charges or administer

a reprimand. If the charges are not dismissed, then the president or the staff member

may request the Committee on Faculty Rights and Responsibilities to consider the

matter. Subsequently, the committee makes a recommendation to the president that

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the charges be dismissed, that the reprimand be sustained, or that formal charges be

initiated against the staff member seeking his or her dismissal or removal from

tenure. If the president adopts the recommendation of the committee to dismiss or

remove the tenured staff member from tenure, then the president files formal

written charges against the staff member setting forth the grounds for dismissal or

removal from tenure. In that instance, the rules provide for a hearing.

{¶ 16} Section 3.555(E) sets forth the hearing procedures, which include

time limits for scheduling; a staff member's right to be represented by legal or other

counsel; representation of the president at the hearing; and presentation of evidence

at hearing by witnesses, including cross-examination and production of a transcript

of the hearing at the university's expense. Pursuant to a time deadline, the

committee reports its decision to the president and to the faculty member. A critical

provision, Section 3.555(F), provides that within five days after receipt of the

committee's decision, either the president or the faculty member has the right to

appeal the decision of the committee to the board of trustees of the university, which

has the authority to make the final decision.

{¶ 17} The university and Chan agree that the appropriate procedure and

the procedure used to determine the sexual harassment complaint against Chan is

Section 3.71 of the manual. Chan contends that in addition to the procedure

prescribed for determining an affirmative action or sexual harassment grievance,

he is entitled, by his contract, to the procedure set forth in Section 3.555, if the

university desires to dismiss or remove him from tenure. Our analysis of the

manual causes us to conclude that the university breached its contract with Chan

when it terminated his employment without affording him the procedures in Section

3.555 that apply to the nonreappointment and termination of appointment.

{¶ 18} Chan's employment contract, comprised of letters of appointments

that incorporate the university's manual and resolutions adopted by the board of

trustees, is expressly written and is therefore properly interpreted as a matter of law

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by the court. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7

O.O.3d 403, 374 N.E.2d 146, paragraph one of the syllabus. We are also bound by

the consistent rule of law that "an instrument must be considered and construed as

a whole, taking it by the four corners as it were, and giving effect to every part; but

when one part is certain on a given subject, and all the other parts are uncertain on

that subject, the certain will prevail over the uncertain[.]" Brown v. Fowler (1902),

65 Ohio St. 507, 523, 63 N.E. 76, 78.

{¶ 19} The university argues that the procedure for resolution of sexual

harassment-grievance complaints takes the place of the procedure for terminating

the contract of a tenured professor and that the grievance procedure provides

adequate procedural safeguards to the respondent. In support of this argument the

university cites Section 3.211 of the manual, which states, "*** [i]ndividuals found

to be in violation of this policy shall be subject to appropriate disciplinary action,

including *** dismissal, within the guidelines of the grievance procedures of the

appropriate authority."

{¶ 20} There is nothing in that section that supersedes the clear direction of

Section 3.555 that a disciplinary action hearing is "for dismissal or removal from

tenure," Section 3.555(D), and that the procedures in Section 3.555 "*** shall be

adhered to in taking disciplinary action against a member of the instructional staff."

When the references to "the grievance procedur[e] of the appropriate authority" in

Section 3.211 are read in pari materia with the commands of Section 3.55, it is

clear that Section 3.555 controls the procedure for terminating a tenured professor.

{¶ 21} The purposes of the two procedures are distinctly different. The

grievance procedure under Section 3.7 is defined as "*** an opportunity for any

employee to express a grievance and receive a fair hearing." Section 3.71 of the

manual, entitled Formal Procedures for Affirmative Action Grievances, is a

procedure designed to enable an employee to file a personal grievance against

another employee or member of the university staff. The procedure under this

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section applies to all affirmative action discrimination grievances. The ultimate

determiner of that grievance is the president of the university. As the court of

appeals correctly observed, the entire grievance process is expressly tailored to

preserve a complainant's rights and produce an eventual resolution of the grievance.

The procedure does contemplate some form of disciplinary action, but does not

expressly include the termination of a contract as under Section 3.555. Even the

affirmative action director in this case appeared to recognize the difference. In his

letter of finding he stated, "[b]ased on this Letter of Finding, the chair of the

department of history should recommend immediate and appropriate disciplinary

action against Dr. Chan. If Dr. Chan contests this Letter of Finding, or if this matter

is not resolved as a consequence of a[n] appropriate disciplinary action, the

complainant *** has the right to call for the convening of a Hearing Committee.

***"

{¶ 22} Section 3.7(B)(2) states that "[o]ther members of the instructional

staff may pursue a solution through appeal to the Faculty Rights and

Responsibilities Committee if the grievance relates to the complainant's role as a

member of the instructional staff." The focus of a Section 3.71 hearing is the

resolution of a complainant's grievance; it is silent with respect to the procedures

to be used if it is determined that a grievance is well taken and that the conduct

producing the grievance subjects a tenured faculty member to dismissal from the

university. The time limits under the Section 3.71 procedure clearly indicate that

the university desires to have grievances arising from affirmative action or sexual

harassment claims resolved quickly. Also significant is the fact that there is no

provision for a respondent to be represented by counsel in any of the grievance

proceedings.

{¶ 23} The procedure prescribed for termination of tenured employees

pursuant to Section 3.555 is different in focus and purpose from the grievance

procedure. The most striking difference is the fact that in a Section 3.555

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procedure, it is the university president who files the formal complaint against the

faculty member and it is the board of trustees that makes the ultimate decision if

the faculty member does not agree with the recommendation of the hearing

committee. The staff member in the disciplinary hearing is expressly given the

right to be represented by counsel both in the first meeting with the university

president to discuss the discipline matter and in the hearing on the formal charges

against him.

{¶ 24} It is simply not reasonable to assume or conclude that a procedure

established for the resolution of affirmative action grievances between or among

members of the university is intended to take the place of a procedure that expressly

provides for the determination of whether conduct by a tenured faculty member

constitutes grounds for terminating the university's contract with the faculty

member. Likewise, it is unreasonable to assume that the university considers

discrimination or sexual harassment to be a less serious offense against a person

than an offense that does not constitute an affirmative action grievance. The

purpose of the two procedures is different, the due process afforded the tenured

faculty member is different, and the entity rendering the final decision is different.

{¶ 25} The university's argument would result in a tenured professor who is

accused of an affirmative action grievance being given less due process in

determining whether the tenured professor will be terminated than a tenured

professor accused of any other offense rising to the level of "adequate cause." The

university does not appear to view an allegation of sexual harassment as less

significant than an allegation constituting some other basis for "adequate cause"

offenses. As a matter of law, the university may not tailor procedural due process

to the offense charged rather than the right deprived.

{¶ 26} Although the issue before us can be decided upon an interpretation

of the contract between Chan and the university, we will also dispose of the due-

process argument raised by Chan. There is no argument that the granting of tenure

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creates an expectation of continued employment subject to discharge for cause. The

United States Supreme Court stated in Perry v. Sindermann (1972), 408 U.S. 593,

601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570, 580, that "[a] written contract with an

explicit tenure provision clearly is evidence of a formal understanding that supports

a teacher's claim of entitlement to continued employment unless 'sufficient cause'

is shown." Tenure has the status of a property right and may be deprived pursuant

to constitutionally adequate procedures defined by the right itself. Cleveland Bd.

of Edn. v. Loudermill (1984), 470 U.S. 532, 538-541, 105 S.Ct. 1487, 1491-1493,

84 L.Ed.2d 494, 501-503; Perry, supra.

{¶ 27} Nor is there any question that Chan was entitled to retain legal

counsel of his choosing to assist in his defense of his tenured status in an

administrative proceeding. Goldberg v. Kelly (1973), 397 U.S. 254, 90 S.Ct. 1011,

25 L.Ed.2d 287. "The right to be heard would be, in many cases, of little avail if it

did not comprehend the right to be heard by counsel. Even the intelligent and

educated layman has small and sometimes no skill in the science of law." Powell

v. Alabama (1932), 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170. Indeed,

the university's procedure for termination of a tenured professor expressly gives the

professor a right to be represented by counsel at all stages in the proceeding.

{¶ 28} The university argues that because Chan was permitted in the

grievance procedure to have the assistance of an advisor or counselor from the

university faculty or staff and because the person selected by Chan happens to be

an attorney, his due process rights were protected. As the court of appeals observed,

the fact that Chan was represented by a faculty advisor who is licensed to practice

law is of no significance, since the record clearly reveals the advisor was permitted

to act only in his capacity as faculty advisor during the grievance. Our review of

the record supports that conclusion of the court of appeals.

{¶ 29} We conclude that the contract between the university and Chan

provided a procedure under which the complaint of sexual harassment against Chan

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was resolved in favor of the complainant and against Chan. The contract also

provides a separate procedure to determine whether the finding of sexual

harassment against Chan constituted "adequate cause" (see Section 3.428 of the

manual) for disciplinary action resulting in the termination of his tenured status

with the university. Because the university terminated Chan's contract without

complying with its express procedure for termination of tenured faculty, the

university breached its contract with Chan and denied him due process of law.

{¶ 30} For the foregoing reasons the judgment of the court of appeals is

affirmed.

Judgment affirmed.

MOYER, C.J., WRIGHT, PFEIFER and COOK, JJ., concur.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.

__________________

FRANCIS E. SWEENEY, SR., J., dissenting.

{¶ 31} I respectfully dissent from the judgment of the majority. For all of

the following reasons, I believe that the court of appeals' judgment should be

reversed and that judgment should be entered in favor of Miami University.

{¶ 32} Strong public policy considerations and case law have established a

duty on employers to provide a safe work environment free of sexual harassment

for its employees and, thus, employers may be held liable for failing to take

corrective action against an employee who poses a threat of harm to fellow

employees. Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 493, 575 N.E.2d

428, 433. See, also, Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio

St.3d 131, 543 N.E.2d 1212. In Kerans, the Ohio Supreme Court stated that "***

where an employer knows or has reason to know that one of his employees is

sexually harassing other employees, he may not sit idly by and do nothing. The

appropriate response, which may range in severity from a verbal warning *** to a

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firing, will depend on the facts of the particular case. ***" Kerans at 493, 575

N.E.2d at 433-434.

{¶ 33} Federally, courts have held that, in Title IX cases, educational

institutions are liable upon a finding of sexual harassment perpetrated by a

supervisor if an official representing the institution knew or should have known of

the harassment's occurrence, unless the official can show that appropriate steps

were taken to halt the harassment. Lipsett v. Univ. of Puerto Rico (C.A.1, 1988),

864 F.2d 881, 901, citing Meritor Sav. Bank, FSB v. Vinson (1986), 477 U.S. 57,

106 S.Ct. 2399, 91 L.Ed.2d 49.

{¶ 34} Title IX of the Education Amendments of 1972, as found in Sections

1681 et seq., Title 20, U.S.Code, requires public institutions of higher learning to

comply with United States Department of Education guidelines designed to

eliminate discrimination. On May 9, 1980, the United States Department of

Education promulgated guidelines designed to eliminate discrimination based upon

sex in federally assisted educational institutions. Section 106.1 et seq., Title 34,

C.F.R.

{¶ 35} In response to a study in 1980 by the federal Equal Employment

Opportunity Commission on sexual harassment and to comply with United States

Department of Education regulations under Section 106.8, Title 34, C.F.R., Miami

University drafted a policy prohibiting sexual harassment for the University and

procedures implementing that policy. The University's board of trustees passed a

resolution approving the University's policy, which is contained in Section 3.211

of the Miami University Policy and Information Manual. Miami University was at

the leading edge in the developing law on sexual harassment when it created this

sexual harassment policy and disciplinary procedure. On October 29, 1981, the

University placed all employees on notice of how seriously it viewed the new policy

when it published the substance of its policy prohibiting sexual harassment in the

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Miami University Report, which is the University's faculty and employee

newspaper.

{¶ 36} In this newspaper, the University stated its position that "employees

and students should have a working and learning environment free from

intimidation, hostility, or other offensive conditions." The University enacted this

policy to protect its employees and students against such offensive conduct and to

discipline the wrongdoers.

{¶ 37} The guidelines of the grievance procedure referred to in Section

3.211 for sexual harassment complaints concerning faculty members are contained

in Section 3.71 of the University's manual. The regulations and procedures

implementing the policy found in 3.211 of the manual are contained in 3.212 of the

manual. Sections 3.212(A)(1) and (2) of the University's manual identify what the

United States Supreme Court in Meritor Sav. Bank, FSB v. Vinson, supra, at 65,

106 S.Ct. at 2404-2405, 91 L.Ed.2d at 58-59, called quid pro quo sexual

harassment. Section 3.212(A)(3) identifies what the United States Supreme Court

in Meritor termed "hostile environment" sexual harassment. Id. at 65, 106 S.Ct. at

2405, 91 L.Ed.2d at 59.

{¶ 38} In contrast to Sections 3.211, 3.212 and 3.71 of the manual, Section

3.555 is a tenure provision which addresses general causes for termination of

tenure. In Rehor v. Case W. Res. Univ. (1975), 43 Ohio St.2d 224, 230-231, 72

O.O.2d 127, 131, 331 N.E.2d 416, 421, this court discussed the purpose behind

tenure as ensuring that a professor "*** will not lose his job for exercising academic

freedom, namely, his rights to teach, to think and to speak in accordance with his

conscience ***." See, also, Keyishian v. Bd. of Regents (1967), 385 U.S. 589, 87

S.Ct. 675, 17 L.Ed.2d 629. Thus, Section 3.555 is clearly designed to protect an

employee from losing his tenure for exercising these freedoms.

{¶ 39} Sections 3.211, 3.212, and 3.71 were created subsequent to the

tenure provisions to specifically address the grievance process and disciplinary

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procedures for sexual harassment cases. These sections apply to all employees,

including tenured employees. Section 3.211 of the manual states that "sexual

harassment shall not be condoned" and that "[i]ndividuals found to be in violation

of this policy shall be subject to appropriate disciplinary action, including written

warning, suspension, or dismissal, within the guidelines of the grievance procedure

of the appropriate authority." (Emphasis added.) The hearing and appeal

procedures are contained in Section 3.71, and the decision on appeal is "final" under

Section 3.71(G). Section 3.71 is incorporated by reference in Sections 3.211 and

3.212. These disciplinary procedures do not implicate any right to a hearing under

Section 3.555, and, in fact, since a decision on appeal is final, an employee should

be aware that he is not then entitled to a separate hearing under Section 3.555.

{¶ 40} In the present case, Chan's hearing convened on May 7, 1990 and

lasted four days. During that time, six witnesses testified on behalf of the

complainant and nine testified for Dr. Chan. Forty separate exhibits were presented

at the hearing. The committee exercised its discretion and rejected some of the

documentary and testimonial evidence.

{¶ 41} On June 5, 1990, the hearing committee found that Chan engaged in

both quid pro quo and hostile environment sexual harassment in violation of the

University's policy prohibiting sexual harassment under Section 3.211 of the

manual as incorporated in Section 3.21(A). The acting vice president and provost,

Joseph T. Urell, reviewed the committee's findings as required under Section

3.71(E), examined all documentation accepted into evidence by the committee, met

with the committee to discuss the evidence heard and conclusions reached, and

listened to relevant sections of the thirty-three hours of audiotape from the hearing.

Dr. Urell later testified, in the Court of Claims, that Chan's sexual harassment was

"blatant" and "was a very serious matter that constituted a grievous abuse of

power." Further, he testified that "[i]t was also a case in dealing with an individual

who was particularly vulnerable, an individual who was a foreign student." From

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this review, Dr. Urell made a determination that this conduct warranted Chan's

termination from the University.

{¶ 42} Based on the strong public policy against condoning such egregious

conduct, it is unfortunate that the majority refuses to support the University's

scrupulous application of this disciplinary procedure as to Chan. Clearly, Chan's

conduct of engaging in both quid pro quo and hostile environment sexual

harassment against a female graduate student was precisely the type of conduct

which the disciplinary procedure was designed to protect the community against.

Furthermore, Chan's termination was an appropriate penalty here considering the

seriousness of the crime committed by him. The majority's decision effectively

neutralizes the University's sexual harassment disciplinary procedure by allowing

the wrongdoer to avoid the force and effect of the procedure's penalty

determination.

{¶ 43} Chan's tenure as a professor was not a vested right exempt from

standards of employee conduct. See Rehor, supra. As part of his employment with

the University, Chan was aware that he was subject to the responsibilities and

obligations outlined in the University's Policy and Information Manual. The

manual in conjunction with Chan's annual letter of appointment amounted to his

contract with the University, setting forth the general conditions of employment.

Chan has admitted that he maintained a copy of the University manual from the

beginning of his employment. Chan admits he was aware that he was obligated to

adhere to the University's policy prohibiting sexual harassment. Furthermore, Chan

was aware that formal procedures existed to address the charge of sexual

harassment, and that if he were found guilty, he could receive the discipline of

termination. Moreover, Chan admits that any penalty levied against him would be

taken as a result of the sexual harassment grievance procedure and hearing

committee and review process. Since it is undisputed that Chan knew he was

subject to the sexual harassment policy and disciplinary procedure as part of his

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contract with the University, and that a finding of guilty could result in his

termination under the disciplinary procedure, Chan should not now be allowed to

avoid being subject to the University's decision. Such a result not only goes against

public policy and Chan's contract with the University, but it could also deter future

victims of this heinous conduct from raising complaints if they believe they have

no meaningful recourse. Furthermore, failing to uphold the University's policy and

disciplinary procedure could subject the public institution to charges by victims

when the victim's complaints are not adequately resolved by the University.

{¶ 44} In addition, Chan waived any rights under Section 3.555 of the

manual, as he never objected to the Section 3.71 disciplinary procedure being used

against him and the potential that it could result in his termination.

{¶ 45} Chan was evidently aware of the Section 3.555 Committee on

Faculty Rights and Responsibilities due to a previous disciplinary procedure.

However, at no time throughout the seven-month sexual harassment disciplinary

process did he ever request a hearing under Section 3.555. Likewise, he never

objected to the absence of paid outside counsel. Chan stipulated that Gary Hunter,

the University's affirmative action and human resources officer, met with him in

January 1990, and explained to him the disciplinary process and the penalties that

could be taken against him. Chan stipulated that he knew he could be terminated

as a result of this sexual harassment policy and disciplinary procedure. Even on

appeal, Chan never raised any right to a second hearing under Section 3.555, nor

did he object to the absence of paid outside counsel. Instead, Chan waited until he

filed a lawsuit in the Court of Claims to raise a right-to-counsel issue. In waiting

so long, Chan waived his right to now raise a constitutional challenge. See South-

Western City Schools Bd. of Edn. v. Kinney (1986), 24 Ohio St.3d 184, 24 OBR

414, 494 N.E.2d 1109.

{¶ 46} Moreover, even if Chan did not waive his constitutional challenge,

Chan's argument that the Fourteenth Amendment Due Process Clause of the United

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States Constitution required that he have a right to paid outside counsel is without

merit. Due process requires that the state give an individual notice and a fair

hearing where it is depriving that individual of a property interest. Goldberg v.

Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. Whether a hearing is

fair is determined by courts on a case-by-case basis. Mathews v. Eldridge (1976),

424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18.

{¶ 47} While this court has not previously addressed the issue of a college

professor's right to counsel at a due process hearing, federal courts addressing this

issue have found that a university's failure to provide college professors with the

right to retain counsel did not violate due process. Frumkin v. Bd. of Trustees

(C.A.6, 1980), 626 F.2d 19; Toney v. Reagan (C.A.9, 1972), 467 F.2d 953. See,

also, Rosewitz v. Latting (C.A.10, 1982), 689 F.2d 175; Rodgers v. Norfolk School

Bd. (C.A.4, 1985), 755 F.2d 59; Chang v. Park (C.A.3, 1975), 514 F.2d 382;

Downing v. LeBritton (C.A.1, 1977), 550 F.2d 689; Yashon v. Hunt (C.A.6, 1987),

825 F.2d 1016; Crook v. Baker (C.A.6, 1987), 813 F.2d 88. The courts distinguish

between the status of welfare recipients, such as in Goldberg v. Kelly, and

university professors or other similarly situated employees. Discussing this

distinction, the Ninth Circuit in Toney v. Reagan, supra, at 958, stated that "***

welfare recipients dealing with state officials are in a class far more likely to be in

need of the services of counsel than college professors dealing with their peers." In

finding that there was no right to counsel, the court held: "In the absence of a

showing of special circumstances in this case requiring the presence of counsel, we

are unwilling to invalidate the state procedures on this ground." Id. Likewise, in

Frumkin v. Bd. of Trustees, supra, the Sixth Circuit found that a restricted right of

counsel did not deprive a tenured professor (terminated for unprofessional conduct,

among other things) of his procedural due process rights. As there was no

indication that the expansion of the lawyer role would have been a significant

benefit to the professor, the court declined to "force the internal academic affairs of

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SUPREME COURT OF OHIO

Kent State University into an adversary mold resembling a criminal trial."

Frumkin, supra, at 22.

{¶ 48} Applying the above federal precedent to the present case, I believe

that Chan was given a fair hearing that did not deprive him of his procedural due

process rights. The record demonstrates that, while Section 3.71 does not entitle

Chan to outside counsel, nevertheless, in this case Chan received all the benefits of

outside counsel and, thus, was not prejudiced. Chan was represented by Professor

Wayne Staton, who served as his chosen counselor for the formal hearing. Staton

was also Chan's personal attorney during that time period. Chan has stipulated that

Staton performed every function that outside counsel would have performed,

including conducting direct and redirect examinations, making opening and closing

arguments, and raising objections on behalf of Chan. Accordingly, there is no

indication that Chan would have received any significant benefit had be been

allowed paid outside counsel. See Frumkin v. Bd. of Trustees, supra. Thus, Chan's

claim that he was prejudiced due to his inability to hire outside counsel is

completely without merit.

{¶ 49} Based on the foregoing, I believe that the court of appeals' judgment

should be reversed and, accordingly, judgment should be entered in favor of Miami

University.

DOUGLAS and RESNICK, JJ., concur in the foregoing dissenting opinion.

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