Judge orders fired Naval Academy professor be reinstated
By SUSAN SVRLUGA | The Washington Post | Published: July 24, 2019
A U.S. Naval Academy professor fired for "unprofessional conduct" and known for his criticism of the school should get his job back, a judge ruled Wednesday.
Last summer, the academy dismissed tenured English professor Bruce Fleming after investigating complaints about alleged behavior including touching students and sharing shirtless photos of himself.
Fleming, a civilian member of the faculty for 31 years, said at the time he had done nothing inappropriate and labeled his dismissal as revenge. He appealed to the U.S. Merit Systems Protection Board, which considers appeals of federal agencies' personnel decisions. An administrative judge ruled in his favor.
"The agency ultimately fails to carry its burden of proof regarding the charge for a host of reasons," Administrative Judge Mark Syska wrote, including "severe credibility issues" for a primary witness and "victims" of Fleming who "did not generally take offense or have any actual issue" with him.
Much of the behavior, Syska concluded, "did not appear to be actual misconduct in the context of free-wheeling classroom discussions."
U.S. Naval Academy spokeswoman Cmdr. Alana Garas said in a written statement that the academy had been notified of the ruling.
"This decision becomes final August 28, 2019, and will be implemented by the Naval Academy, unless the Department of the Navy files a petition for review (appeal)," Garas said."The decision as to whether or not to file the petition for review is under evaluation."
Fleming was more blunt.
"They've been after me for the last 15 years," Fleming said. He argues the complaints were without merit. The pressure of losing his job, income and health insurance was considerable. "They're right to think if they get nasty enough, most people will cave," he said.
Fleming said he hopes to return to teaching in Annapolis, Maryland, in the fall. "I'm absolutely delighted to be helping to produce thinking officers," he said. The country needs officers on the front lines who can evaluate the situation on the ground, not just take orders from superiors, he said.
Fleming's case touches on the tension between academic culture, with its reverence for free speech and critical thinking, and military culture, which regards loyalty and conformity with rules as paramount virtues.
Fleming has been a persistent critic of the Naval Academy.
In 2011, he wrote in The Washington Post about his legal request for information about how the academy counts applicants. The response, he wrote, "produced the sensational information that we overstate our selectivity by what is probably a factor of about 4-to-1 . . .
"The Academy wants respect bordering on reverence from the civilian world," he wrote, "yet it wants to be able to forgo following the same rules as everybody else: it wants to be able to win a two-mile race by running a mile. "
The academy has imposed sanctions on Fleming in the past.
The attorney who has represented Fleming for several years, Jason Ehrenberg, said he hopes this ruling will help. "Hopefully, they'll bring him back and let him do his job, which he loves to do," Ehrenberg said.
The case began when a midshipman filed a lengthy complaint about Fleming's behavior in a plebe, or freshman, class called "Rhetoric and Introduction to Literature." Four other midshipmen then filed shorter complaints about Fleming. Concerns included discriminating against students on political grounds, allowing students to tell jokes of a sexual nature in class, mispronouncing an Asian student's last name, and touching students on the neck, back and shoulders in class without consent.
Fleming is an unusual professor at the Naval Academy, Syska concluded. "He is irreverent, theatrical, fashion-conscious, outspoken in his criticism of the academy (both in the classroom and his writings), and liberally sprinkles his classes with profanity and discussions of sexually-related topics (from condom use to transgender surgery)," the judge wrote.
Syska described a class that was popular with students, who enjoyed Fleming's persona and teaching style. A professor in the English department testified that in more than 1,000 student evaluations of the class, more than 90 percent were positive.
Syska concluded the primary complainant lacked credibility and dismissed the individual criticisms as lacking merit. A shirtless photo, for example, was emailed to a student who had asked Fleming about his current fitness compared to that of his youth, and the student in question was not offended by the email.
Syska ordered the academy to restore Fleming's job and pay his lost wages, while noting the academy could appeal the ruling.