Opinion of the Faculty Board of Review

Date: March 28, 2024

From: Faculty Board of Review, Professor Moira Marsh, Chair; Professor Allen Davis, Member;
Professor Kenneth Dau-Schmidt, Member; Professor Lessie Frazier, Member; and Professor Jane Ann
Grogg, Member

To: Rahul Shrivastav, Provost

CC: Professor Abdulkader Sinno, Grievant; Lana Spendl, Bloomington Faculty Council; Carrie Docherty,
Vice Provost for Faculty and Academic Affairs

RE: The Grievance of Professor Abdulkader Sinno against the Vice Provost for Faculty and Academic
Affairs, Carrie Docherty

Opinion

It is the opinion of the Faculty Review Board that the Vice Provost for Faculty and Academic Affairs
(VPFAA), Carrie Docherty, is bound to follow the procedures of BL-ACA-D27 in her case against Professor
Abdulkader Sinno, rather than ACA-33, because she seeks to impose “severe sanctions” on Professor
Sinno. It is our opinion then that the Provost should direct the VPFAA to proceed in accordance with BL-
ACA-D27 before the Faculty Misconduct Review Committee (FMRC) if she continues to seek severe
sanctions as part of the discipline in this case, or under ACA-33, if she decides to seek only non-severe
sanctions.

Facts

The relevant facts of this case are as follows.

In early November of 2023, Professor Sinno was the Faculty Advisor for a student group called the
Palestine Solidarity Committee (PSC). In conjunction with the PSC, Professor Sinno attempted to secure
a room for a November 16, 2023 presentation by Jewish Israeli writer and peace activist Miko Peled, on
the current problems in Gaza. The particular facts of these efforts are not important to the procedural
question relevant to this grievance. After some machinations that included several applications for room
reservations by the PSC and Professor Sinno, a room was reserved, but then cancelled, but the event
was held anyway, and Professor Sinno attended.

On November 16, 2023, Benjamin Hunter, Associate Vice President for Public Safety at Indiana
University, filed a complaint with the VPFAA alleging that Professor Sinno had compromised university
security by failing to follow procedures in scheduling a room for the presentation. Pursuant to this
complaint, on November 17, 2023, VPFAA Docherty sent a “Notice Letter” to Professor Abdulkader
Sinno stating that her office was commencing an investigation into allegations that he engaged in
“academic appointee misconduct” and “egregious conduct,” including an “egregious failure to fulfill the
responsibilities of [his] appointment as a faculty member”.

On December 15, 2023, after completing her investigation, VPFAA Carrie Docherty sent Professor Sinno
a “Decision Letter” stating that she had “determined, based on a preponderance of the evidence, that
you have engaged in behavior that violates the following University policies: ACA-33, the Principles, and
Student Organizations (STU-01).” The VPFAA further stated that “As the result of your conduct during
the interview, your credibility deficiencies, my concerns regarding your judgment in advising the student
1
organization, your failures to follow relevant policies and procedures, and evidence obtained during the
investigation, I have serious concerns about the effect your behavior may have on members of the
campus community.” Based on these findings, VPFAA Docherty found that Professor Sinno had violated
ACA-33 and imposed the following sanctions: prohibiting him from engaging in any and all teaching
responsibilities for the Spring 2024 and Summer 2024 semesters, to be reconsidered for the Fall 2024
semester; possible assignment of additional duties by his Dean; removal from the role of faculty advisor
for all university student organizations for one calendar year followed by university training regarding
the role of faculty advisor; and a copy of her Decision Letter to be retained in his personnel file. The
VPFAA added: “This sanction reflects my grave concerns about your lack of credibility in participating in
the investigation, the potential consequences of diverting police resources for an event that did not
have proper approval, as well as the impact of your conduct on our students. Your past and most recent
behavior constitutes an emerging pattern of unethical and unprofessional conduct.”

On January 30, 2024, Professor Sinno filed a letter with the FBR grieving the VPFAA’s decision to pursue
the case against him under ACA-33, rather than BL-ACA-D27, and appealing the appropriateness of the
VPFAA’s sanctions against him.1 Professor Sinno objected to the VPFAA’s disciplinary action for: “failing
to follow the appropriate policies; reaching meritless findings; imposing unwarranted and severe
sanctions; and conducting a wrongful investigation of a complaint against [him]”. In particular, Professor
Sinno argued that because he was under investigation for what the VFPAA considered “serious personal
or professional misconduct” and subjected to “severe penalties” in her discipline letter, the VPFAA
should have followed the procedures set forth in BL-ACA-D27, rather than ACA-33, and submitted a
complaint to the FMRC for a hearing, findings and a determination of possible sanctions. Professor Sinno
acknowledged that the FBR would not need to reach his appeal of VPFAA Docherty’s sanctions if we
agreed with him that the VPFAA should have proceeded under BL-ACA-D27 before the FMCR rather than
on her own accord under ACA-33. There are significant differences in the procedural protections for
faculty between ACA-33 and BL-ACA-D27. Unlike ACA-33, BL-ACA-D27 requires the VPFAA to bring a
complaint before the FMRC, a standing committee appointed by the Bloomington Faculty Council, for a
hearing at which the faculty member is allowed to defend himself, call witnesses, and be entitled to
advisors. Unlike ACA-33 where a mere preponderance of the evidence is required, the standard for
proof against the faculty member under BL-ACA-D27 is “clear and convincing evidence.” Finally, the
FMRC, rather than the VPFAA or another administrator, makes the initial recommendation on any
possible sanctions to the Provost.

On February 29, 2024, VPFAA Docherty filed a response to Professor Sinno’s grievance. The VPFAA
argued that, as a university-wide policy, ACA-33 supersedes BL-ACA-D27 which is a Bloomington Faculty
policy. In support of this proposition the VPFAA cites UA-08 which provides that “[i]n the event of a
conflict between a university policy and a local policy that cannot be resolved, the university policy
controls.” The VPFAA also cites ACA-33 which provides that “[t]his policy supersedes any provisions in
campus personal misconduct policies that are inconsistent with it.” The VPFAA argues that ACA-33
identifies the Board as the sole forum for Sinno to seek relief by appealing the sanctions in her decision
letter of December 15, 2023, and that we are limited in our review of the facts in the record.

1The FBR is set up to hear two kinds of cases: (1) grievances of administrative decisions, and (2) appeals of sanctions (BL- ACA-
D22 II A). Grievances before the Board are governed by the procedures set out in BL-ACA-D22 II C, while appeals of sanctions
are governed by BL-ACA-D22 II D. Professor Sinno’s complaint is both a grievance of the VPFAA’s decision to proceed under
ACA-33, rather than BL-ACA-D27, and an appeal of the appropriateness of the sanctions she imposed.
2
In the first week of March 2024, the VPFAA also provided each member of the FBR with a “Confidential
Dossier” delivered by courier. This dossier contained reports on the current dispute, a list of bias
incident reports by students and alumni against Professor Sinno most of which were submitted
anonymously, emails and letters documenting conflicts between Professor Sinno and various faculty
members and administrators since 2022, a report on an incident involving Professor Sinno from 2019,
and two reports concerning incidents involving Professor Sinno from 2010 at least one of which may be
subject to a confidentiality agreement.

Viewed generously, this dossier was an effort on the part of the VPFAA to fortify her case against Sinno
and flesh out the reference in her decision letter that Professor Sinno’s alleged unprofessional behavior
in attempting to schedule a room for the Peled presentation was part of “an emerging pattern of
unethical and unprofessional conduct.” However, neither of the VPFAA’s letters detailed these issues
and to our knowledge this information was not given to Professor Sinno. On March 6, 2023, the Board
requested that a copy of the dossier be provided to Professor Sinno, and on March 20 the VPFAA replied
with a refusal to do so. Accordingly, Professor Sinno has not had a chance to respond to these
allegations and they cannot be part of the proceedings against him or the basis for punishment. The
FBR’s policies prohibit the parties from communicating with or attempting to influence the FBR outside
of its procedures (BL-ACA-D22, II A). Moreover, the FBR’s policies with respect to grievances require that
all information be provided to both parties (BL-ACA-D22, II C 9) and that anonymous allegations cannot
be considered (BL-ACA-D22, II C 17). Even under our procedures for appeals of sanctions we are
required to limit our decision to the record at hand, a record that will have been constructed with the
notice and response of both parties and perhaps a hearing before the FMRC (BL-ACA-D27) and is the
sole basis for the decision (BL-ACA-D22, II D c). Moreover, disclosure of information subject to a
confidentiality agreement may itself be a violation of university policies. The information in the dossier
played no role in our deliberations and was irrelevant given our resolution that this case should be
brought before the FMRC.

Issue

The basic issue for us to decide is whether Professor Sinno is right that the VPFAA’s case against him
must proceed under BL-ACA-D27, and be brought before the FMRC before sanctions can be imposed, or
whether the VPFAA is right that ACA-33 dominates BL-ACA-D27 and the VPFAA can proceed to sanction
him subject only a limited review by this Board under ACA-33?

Discussion

The public university is a marvelous invention for the production and dissemination of knowledge. The
state appoints trustees, endows them with resources, and charges them to appoint administrators and
faculty, develop a curriculum, undertake research, and admit and educate students (IC 21–27–1 to IC
21–27–2, IC 21–27–2–4). Because the Trustees need not have any particular expertise in determining
which administrators and faculty to hire and retain, how to conduct research, what curriculum to teach,
and how to teach it, the state directs the trustees to delegate authority to administrators and faculty to
aid in the performance of these tasks (IC 21-38-3-4). In order to perform their duties within this system,
the faculty needs a system of shared governance with the administrators and the substantive and
procedural protections of tenure. Accordingly, the trustees have fostered, approved and/or ratified the
development of system of faculty governance and the myriad of policies we have developed to govern
the rights and responsibilities of the faculty (Board of Trustees, Continuing Resolution on Full-time
Appointed Positions, 9/18/1998; ACA-04, ACA-33, ACA-37; BL-ACA-D8, BL-ACA-D27, BL-ACA-E2). The
3
university is bound by the reasonable expectations with respect to faculty rights and responsibilities that
the university policies create.

Paramount among the rights and responsibilities of faculty are the substantive and procedural rights
attendant to tenure (ACA-32, ACA37; BL-ACA-E2). Tenure is of paramount importance to the faculty and
the university for several reasons. First, the protections of tenure are essential to the successful
execution by the faculty of their roles in faculty governance, teaching and research. Second, the
substantive protections of tenure are of great personal value to academics and essential to making
competitive offers to superior faculty. Third, the administration of the university benefits from the well-
reasoned adherence to university policies with respect to tenure and discipline. When these policies are
not followed, the problems addressed in the cases brought under these policies generally go from bad
to worse. Finally, the procedural protections in our policies regarding the sharing of information and
conduct of hearings help ensure that Indiana University provides its faculty with the due process it is
constitutionally required to provide as a public university. Following these rules is vital to giving the
faculty notice of what they have been accused of and the opportunity to respond as required by our
policies and the US Constitution. Under no circumstances should faculty be punished for allegations that
are not in the record and given to the faculty member and the relevant faculty disciplinary committees.
Such an action would not only frustrate university policies but also deny the faculty member his or her
constitutional rights.

Due to the essential nature of tenure to the functioning of the faculty, and the faculty’s expertise with
respect to teaching, research and when faculty should be tenured and retained, the faculty exercises
“legislative power” over the development and enforcement of our extensive policies on tenure and
discipline in its role of shared governance with the administration (ACA-04-2.2; BL-ACA-D8-2.1). This
power is distinguished from the “consultative” power the faculty has in areas such as the budget and
constitutes a real say in the substantive determination and interpretation of University policies.
Although the parties may sometimes consult with General Counsel concerning the drafting and
interpretation of policies, General Counsel interpretations are far from dispositive on the subject. Legal
education is of small advantage in such matters and General Counsel is at a disadvantage relative to
both the administration and the faculty in understanding the problems being addressed in these policies
and the reasons for, and history of, their development. Our IU Constitution charges the administration
and faculty with determining such matters, not the General Counsel.

So what are the reasonable expectations that Professor Sinno might have in this case based on the
relevant university policies? Which policy applies to his case, BL-ACA-D27 or ACA-33? Is Professor Sinno
confined to review of the VPFAA’s decision and sanction by this Board under ACA-33, or should the
VPFAA have pursued her case against Professor Sinno before the FMRC under BL-ACA-D27?2

The VPFAA has argued that: (1) she brought the case against Sinno under ACA-33, and so he is bound to
the remedies in that policy; (2) ACA-33 is a university-wide policy that preempts inconsistent campus

2
There is a preliminary issue that both parties ignore in this case. The University’s website which sets out the University
policies, including ACA-33, disclaims that it creates contractual rights. https://policies.iu.edu/academic/index.html?page=2&keywords=&type=&sort=
On the other hand, Bloomington website that sets out its policies, including BL-ACA-D27, states that these policies create
“important rights and responsibilities.” https://bfc.indiana.edu/policies/index.html It is hard to see how a policy with no
binding effect (ACA-33) could dominate another policy that establishes “important rights”. However, we agree with the implicit
position of the parties that the disclaimer in the University Policies is ineffective. This disclaimer is neither clear nor
conspicuous, not even appearing on the VPFAA’s own posting of the Universities policies, https://policies.iu.edu/ , and is
treated by the parties as ineffective in all their dealings.
4
policies (citing UA-08) and that, even though ACA-33 expressly contemplates additional campus policies
in cases involving “severe sanctions” (ACA-33 Policies 5 e), BL-ACA-D27 is inconsistent with ACA-33
because it has not been updated since ACA-33 was updated in March of 2023. However, none of the
VPFAA’s arguments are persuasive. It cannot be that whenever a University Policy is updated all prior
approved policies are necessarily inconsistent. Indeed, it would seem the accommodation made in ACA-
33 Policies 5 e specifically contemplates pre-existing campus policies like BL-ACA-D27 and a letter
provided by Professor Sinno from Professors Sanders and Tanford who were involved in the update of
ACA-33 confirms that this was the case. BL-ACA-D27 is not inconsistent with ACA-33. Both provisions
were consciously made to work together. VPFAA Docherty’s argument that she has begun this process
under ACA-33 and so Professor Sinno is limited to the procedures and remedies of that policy is also
unavailing. To let the VPFAA undermine the policy protections consciously included in ACA-33 and BL-
ACA-D27 through her mere choice of procedure would frustrate the purpose of the faculty and
administration in providing those procedures.3 Accordingly, although ACA-33 alone may apply to less
serious cases, where the VPFAA is handing a case against a faculty member involving “serious personal
or professional misconduct” (BL-ACA-D27) in which the VPFAA thinks that “severe sanctions” may be
appropriate (ACA-33 Policies 5 e) she should bring the case before the FMRC for hearing pursuant to the
procedures under BL-ACA-D27. In no case can the VPFAA unilaterally impose “severe sanctions” on a
faculty member without giving him or her process under BL-ACA-D27.

Applying this reading of the university’s policies to this case, it is our opinion that the VPFAA should have
proceeded with her case before the FMRC under BL-ACA-D27 before levying the sanctions she imposed
in this case. It is clear from her notice and decision letters that the VPFAA thought she was pursuing
“egregious” violations of professional conduct by Professor Sinno, worthy of severe sanctions. ACA-33
Policies 5 b and c distinguish between “common sanctions”, which “may be imposed by either the
principal administrator of the unit or the campus chief academic affairs officer” and “severe sanctions”
which “may be imposed only by the campus chief academic affairs officer.” ACA-33 Policies 5 b gives a
list of “common sanctions” that includes “reprimand, reassignment, reduction of course load and
commensurate salary reduction, referral to university resources for training, referral to health providers
or counselors, a probationary period, and similar actions designed to ameliorate the violation and
reduce the likelihood it will recur”. ACA-33 Policies 5 c gives a list of “severe sanctions” that include
“suspension with or without pay, salary reduction, loss of privileges, prohibition against participation in
certain classes or activities, or involuntary termination.” In this case the VPFAA sought to suspend
Professor Sinno from his teaching responsibilities, his supervision of the student group, and all contact
with students. His suspensions from teaching duties and student contact are clearly among the
sanctions listed in ACA-33 Policies 5 c as “severe sanctions.” Accordingly, the VPFAA was on notice that
she would need to proceed under BL-ACA-D27 to achieve such sanctions in this case.

If the VPFAA decides to pursue this case before the FMRC she should be careful to bring forward any
and all accusations that are the basis for sanctions. Full disclosure gives Professor Sinno notice of the
claims against him and a chance to respond. This is necessary for the efficient operation of our
disciplinary procedures and the fulfillment of the university’s obligations to Professor Sinno under
university policies and the US Constitution.

3Other arguments made by the VPFAA in support of her position at the Bloomington Faculty Council meeting of January 16,
2024, for example that following the procedure in BL-ACA-D27 is permissive, but not required, on her part were not a part of
the record in this case for good reason. They are also not convincing.
5