Tarleton State University v. Foundation for Individual Rights and Expression

Court of Appeals of Texas·Decided March 13, 2025·No. 15-24-00057-CV·Published

Opinion

ACCEPTED 15-24-00057-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/13/2025 4:42 PM Wolfgang P. Hirczy de Miño, PhD CHRISTOPHER A. PRINE CLERK wphdmphd@gmail.com RECEIVED IN 15th COURT OF APPEALS AUSTIN, TEXAS March 13, 2025 Via Texas eFile & eServe 3/13/2025 4:42:12 PM RE: Tex. Case No. 15-24-00057-CV CHRISTOPHER A. PRINE Clerk STYLE: Tarleton State University v. FIRE

AMICUS SUGGESTION OF MOOTNESS AS TO “FINAL RESULTS” OF TITLE IX SEXUAL HARASSMENT INQUEST

Dear Clerk: While scouring the web for press coverage of this case, I discovered that the assistant professor targeted by FIRE was cleared of sexual harassment charges. The “final results” notification letter is available for download from FIRE’s own website. I further note that in its correspondence to Tarleton, Fire’s representative references students’ allegations and the professor’s firing, but fails to mention the fact that the complaints or grievances were duly investigated and determined to be unfounded. The critical fact – the actual outcome of the Title IX investigation – was strategically omitted.

Embedded image excerpt of TITLE IX final results determination re: Professor Landis

FIRE V. TARLETON TITLE IX & FERPA FINAL RESULTS INFO 1 AMICUS #2 A disinterested observer might conclude that the real scandal here is that a professor was sacked (or incentivized with a contract buyout in exchange for a release of his own legal claims against the University) after an official investigation determined he had not violated the University’s sexual harassment policy and had not created a hostile environment. FIRE’s PIA-related correspondence to Tarleton eschews the outcome as follows: “[…] the requests relate to Tarleton State’s response to a frivolous litigation threat issued by a former professor, Michael Landis, over student newspaper Texan News Service’s coverage of students’ allegations that Landis sexually harassed them—allegations that culminated in a recommendation that he be terminated

In any event, whatever the reasons and motives, since FIRE already has in its possession the Title IX final results notification letter (also referred to as “Memorandum”), it does not have an actionable claim against the University under PIA concerning non-release of this document because it is in the public domain. Not only that: it is available online on the organization’s own website, along with other documents pertaining to the Title IX matter and related defamation issues. See list with hotlinks appended at the end of this letter. Stated differently, FIRE’s complaint about Tarleton’s non-release of this document is moot, and no statutory mandamus can therefore validly issue. The underlying trial court order is accordingly null and void in part without this Court even having to say so. As for admissibility, I fail to see a problem even on appeal. The disposition letter is admissible against Tarleton because the University created it and because it represents an official report of an investigation conducted pursuant to legal duties under federal statue and associated DOE “Dear Colleague” guidance.1 In the unlikely event that the University or FIRE should dispute the final results notice letter’s authenticity, the matter can be remanded to the trial court for fact finding. The trial court might then also question whether this lawsuit was brought for an improper purpose, namely, to destroy Landis’s academic career with the benefit of judicial proceedings privilege after he was cleared of wrongdoing by

1 See, generally, James T. Koebel, "Campus misconduct proceeding outcome notifications: A Title

IX, Clery Act, and FERPA compliance blueprint. 37 Pace L. Rev. 551 (2016). FIRE V. TARLETON TITLE IX & FERPA FINAL RESULTS INFO 2 AMICUS #2 Tarleton under the applicable university code of conduct and/or other applicable policies. An interesting question remains: Should Texas courts facilitate scandal mongering via judicial websites as the relevant publication forum that also imbues any proffered libel, denigration, or invasion of privacy with immunity? If so, should the accused, or, as here – the previously-accused and since-cleared faculty member, have a say also? As a matter of fundamental fairness? In that connection I find it curious that FIRE characterizes a potential defamation suit by Landis as “frivolous” with reference to the Texas statue of limitations. It would seem to me that the obvious cause of action would be breach of the separation agreement that contains the non-disparagement clause in it. Since this is a settlement agreement implicating claims for which the state university’s sovereign immunity is waived (namely, Landis’s own Title VII and or Title IX claims), the University may very well not be immune.2 I further note that this notice of resolution concerning the purported sexual harassment ascribed to Landis encompasses all three complaints, including apparently one or two anonymous ones. Facially, this document suggests that the University found it significant that allegations were made regardless of truth or falsity, and regardless of whether the underlying conduct (whatever it was) constituted a violation of any university policy, not to mention a criminal law, and that termination of employment was recommended despite a disposition in favor of the tenure-track faculty member respondent. I further note that Landis, as part of the bargain, gave up his rights as a tenure-track faculty (a status better than that of at-will adjunct or visiting faculty with at best dubious expectation of continued employment) and his right to sue he university for damages. See, most recently, FASORP v. Northwestern University, Case No. 1:25-cv-01129 (N.D. Ill.),3 filed February 2025)(alleging rampant discrimination in faculty employment in violation of federal statutes). If a firing following a determination that no violation of law or policy had occurred doesn’t raise eyebrows, I respectfully submit it should. I would be willing to

2 A copy of the separation agreement and release is already before the court. 3 Complaint at https://fasorp.org/static/fasorp/pdf/NW-Complaint-202502.faae293df18f.pdf.

FIRE V. TARLETON TITLE IX & FERPA FINAL RESULTS INFO 3 AMICUS #2 expend additional remaining life time to elaborate on the topic with citations to literature and legal authorities. Date: March 13, 2025

Respectfully submitted, / s / Wolfgang P. Hirczy de Miño ______________________________ Wolfgang P. Hirczy de Mino, Ph.D. Email: whdmphd@gmail.com

Political Scientist, not Attorney at Law Writing as Amicus Curiae

TRAP 11 STATEMENT AND CERTIFICATE OF SERVICE The undersigned amicus curiae is a political scientist by academic training, not an attorney acting in a representational capacity, and hereby certifies that he has authored this amicus letter solely upon his own initiative and is not being paid by any party or nonparty for doing so. Nor has any compensation been promised for submitting this amicus curiae letter. Tex. R. App. P. 11.

All parties to this case are being served through the Texas e-filing system through their respective attorneys.

/ s / Wolfgang P. Hirczy de Miño ______________________________ Wolfgang P. Hirczy de Mino, Ph.D.

FIRE V. TARLETON TITLE IX & FERPA FINAL RESULTS INFO 4 AMICUS #2 CASE-RELATED DOCUMENTS POSTED ON FIRE’S WEBSITE AS OF 3/13/2025

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