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Natelson wins UM dispute
By BETSY COHEN of the Missoulian
August 27, 2004

Conservative activist Rob Natelson, who claimed he was the victim of political discrimination at the University of Montana, has triumphed in a campus battle to teach constitutional law.

University President George Dennison announced Natelson's new teaching assignment Thursday after accepting a hearing officer's report concluding Natelson, a UM law professor since 1987, had been treated unfairly at the Law School. Hearing officer Donald Robinson found Natelson had been unfairly denied the opportunity to teach constitutional law, but stopped short of addressing the professor's complaint of discrimination based on his personal politics. Dennison appointed Robinson, a Butte attorney, as hearing officer after Natelson sought to take his complaint to the state Board of Regents in July. The regents declined to intervene.

"I am very pleased," Natelson said. "I think it's time to put the acrimony behind us."

Natelson's faculty colleagues reacted coolly to the decision, but Law School Dean Edwin Eck vowed to move beyond the contentious issue for the sake of students.

For Natelson, the outcome settles a long struggle with his employer. His grievance, which covered two distinct themes - political discrimination and violation of department hiring procedures - was given an expedited hearing at Dennison's request.

Natelson, who has twice run as a Republican for governor and led ballot-issue campaigns to limit taxes, accused UM of discriminating against him once his conservative political views became public in 1993.

That discrimination, he said, made itself known every time he requested to teach constitutional law and denied that opportunity as well as other job benefits.

After reviewing the conclusions crafted by the hearing officer, Dennison agreed that UM's Law School gave preference in the past to a few faculty members seeking internal transfers, a practice which Robinson identified as "collegial preference."

Dennison said in his decision: "To change such a practice or outcome, however limited in prior use, once invoked by a faculty member constitutes an unfair denial of a reasonable expectation of fair and equitable treatment.

"In this instance, the Faculty Appointments Committee and the faculty at large voted to adopt a written policy - after Professor Natelson requested consideration for a transfer."

Dennison agreed with Robinson, who deemed the new policy "a deliberate effort to prevent Professor Natelson from having the benefit of the prior practice or custom."

Robinson questioned the Law School's practice of allowing faculty on the Appointments Committee to vote on teaching assignments for other faculty. He cited in his report a letter from Andrew Morriss, the associate dean at Case Western Reserve University School of Law.

Morriss said he thought the practice was a practical joke when he was first told about it.

"It is, frankly, bizarre to assign courses based on faculty vote," Morriss said in a letter submitted during the hearing before Robinson. "There are many issues on which the collective wisdom or consent of the faculty is needed. Their colleagues' teaching assignments are not one of them. ... This invites petty, divisive behavior amongst a faculty."

Dennison concluded that internal transfer of faculty and national searches can co-exist if the school or department formally discusses and outlines its plan.

Dennison did not believe Natelson to be a victim of political discrimination, but he, like Robinson, acknowledged the "existence of personal animus on the part of a number of people against Professor Natelson."

As evidence, hearing documents show several opinion articles critical of Natelson, penned by Law School faculty, which were published by the Missoulian and other Montana newspapers.

Dean Eck and other faculty members told Robinson during a 15-hour hearing that clashes with Natelson resulted from "Natelson's unwillingness to be a team player on the faculty, his thoughtlessness and intemperate actions and some of his personal attributes that are abrasive and frequently contentious."

In addition to the friction that exists among Natelson and his colleagues, Robinson found that Law School administrators also treated Natelson differently than other faculty. When the school recently solicited contributions from alumni, at least 12 Law School professors were lauded in a newsletter for their scholarly efforts, but not Natelson. He was not included, despite numerous articles, including some published in prestigious law reviews, to his credit.

In his report, Robinson found that the Law School had repeatedly denied Natelson's request for sabbatical until UM Provost Lois Muir notified the school that, as a long-serving tenured professor, Natelson was entitled to one. Natelson now plans to delay his sabbatical in order to teach the constitutional law course.

After mentioning his concern that Natelson's teaching style has received poor student evaluations, and his "seeming unwillingness to shoulder an equitable share of the service burden of the School of Law, and Professor Natelson's lack of civility and collegiality with students and colleagues," Dennison decided the following:

n Natelson will teach the course on a temporary basis, which this academic year, is taught in the spring of 2005.

n An independent evaluation committee will be assembled to review Natelson's performance in teaching the course. After making class visitations, assessments of his teaching abilities and other relevant considerations, such as required readings, the committee will recommend whether Natelson should be appointed to the course on a permanent basis.

n The committee will also review Natelson's performance record concerning scholarship and service.

n Except for the recommendations of the committee, Natelson will remain under the general administrative oversight of the Law School dean.

"This will be his opportunity to demonstrate his competency to teach the course," Dennison said.

Dennison said he believes the grievance process has been productive for all parties involved.

"People need to have a fair hearing, and I think this hearing worked that way," he said. "I hope now we can move forward."

Over at the Law School, Dennison's decision prompted long pauses and careful phrasing from administrators and faculty.

"I have every expectation our colleagues and I will continue to deliver a quality curriculum," Eck said. "I would feel more positive if I hadn't been directed to make a temporary appointment.

"I really do think it restricts the dean's ability to make course assignments ... and this decision will apparently limit my discretion in the future, and possibly for other deans."

Eck said the Law School is moving on, beyond this dispute.

"We are four days into the new semester. We just started school with 84 bright students, mostly from Montana and 50 percent are women," he said. "We are going to deliver a quality curriculum, and I'll do my best to set a positive example and encourage other faculty to do so."

Among the rank and file, there's a real frustration that the Law School faculty did not have a formal opportunity to express their views in the hearing process, said law professor John Horwich.

"I think there is a serious issue of legitimacy when faculty did not have a chance to advocate its position and respond to allegations that they are unfair," he said.

But nobody is resentful that Natelson sought a legal remedy to address his grievances, he said.

"We can't hold a grudge against someone for exercising their rights," Horwich said. "Especially not here - in the Law School."

Natelson said he now feels better about his work place, and he's excited to teach constitutional law.

"The hearing officer says everybody needs to be treated fairly, and I agree," Natelson said.

"When everybody is treated fairly, you have a firm basis for a collegial working relationship, and I look forward to having that kind of relationship with the Law School.

"It's been made clear that everybody be treated fairly," he said. "I believe and hope bygones will be bygones."