Lawsuit Against UW Social Work School Over Retaliation for Allegedly Anti-Trans Essay Can Go Forward

From yesterday’s decision by Judge David Estudillo (W.D. Wash.) in Arias v. Univ. of Wash. Tacoma:

For purposes of the present motion, and resolving the disputed material facts in Plaintiff’s favor, the Court finds:

Plaintiff’s interaction with Defendant Vern Harner on April 20, 2023 was “momentary.” Plaintiff mentioned she was thinking about focusing her zine project on women’s rights and showed Harner her computer screen with a Google search for an article available; she “did not have any article open.” Harner did not say much but told Plaintiff to make sure the source Plaintiff planned to use was reputable. Harner did not tell Plaintiff that her project idea violated social work values and ethics.

Either later that day or the next day, Harner identified and reviewed an article that Harner believed Plaintiff had open on her computer. Harner believed Plaintiff’s planned zine project was on “the issue of ‘trans’ people sexually assaulting others in prison,” a topic Harner found “so many issues with.” One issue was Plaintiff’s alleged reliance on the article as a source, which among other things, Harner identified as being “full of TERF and far right dog whistles and talking points.” {TERF appears to refer to trans-exclusionary radical feminism.} Harner sought advice from Defendant Claudia Sellmaier, explaining Harner’s impressions of Plaintiff to Sellmaier.

On April 27, 2023, Plaintiff presented Harner with her draft zine project sometime after 11:30 a.m. Harner planned three-to-five minutes with each student that morning. Harner did not identify why Plaintiff’s project targeted transgender people or what specific social work standards Harner believed Plaintiff violated. Plaintiff expressed she did not understand why her project was not considered a social justice issue.

Harner became visibly upset reviewing and discussing the draft zine, eventually throwing their hands in the air and telling Plaintiff, “[t]his is targeting transgender.” Their interaction ended and at some point Plaintiff asked to meet later that day with Harner, but Harner stated they were unavailable that day.

Sometime in the afternoon of April 27, 2023, Harner contacted the Dean of the School of Social Work (Defendant Keva Miller) to report the interactions with Plaintiff. Based on Harner’s description of the events, Miller recommended Harner initiate a PSC referral.

At 2:12 p.m., Harner sent Plaintiff an email informing her they could not meet that afternoon. Harner directed Plaintiff to contact Sellmaier and Chris Barrans for any further questions or concerns. Harner told Plaintiff her draft project was “harmful and not aligned with social work values & ethics” and attached to the email three links for Plaintiff to review, but did not explain to Plaintiff why the draft project was harmful or not aligned with social work values and ethics. Harner also told Plaintiff further discussion could be had “about the intersection of trans rights and women’s rights when that conversation is approached appropriately and in good faith.”

By 2:50 p.m., 38 minutes after sending the email to Plaintiff, Harner had completed and emailed a Professional Standards Committee (“PSC”) referral form. In their referral, Harner asserted Plaintiff’s proposed zine project topic was “extremely anti-trans,” that Harner suspected Plaintiff had sent Harner an anonymous email a few weeks prior, that Plaintiff did not believe her proposed topic was misaligned with social work values, and that Plaintiff “sees women’s & trans rights as competing issues.” As to why Harner decided not to inform Plaintiff of the PSC review request, Harner identified they had “connected” Plaintiff with the BASW chair and the faculty advisor and identified that “further escalation may include safety concerns.” Nothing in the record identifies why Harner believed there were safety concerns. The PSC referral form also does not identify any social work standards that were violated.

The PSC convened a meeting on May 16, even after Plaintiff expressed concerns about the fact Harner had not tried to resolve the issue with her first. No one at the PSC meeting identified which social work standards were violated. The PSC committee also declined to identify the specific standards that were violated in email communications with Plaintiff after the PSC meeting. Only in Plaintiff’s termination letter did Defendants identify what social work standards had been violated. The letter also fully credited Harner’s description of the events of April 20 and 27. It explained that the reason Harner made the PSC referral on April 27 was because Plaintiff had not reconsidered her draft topic and “did not arrange to stop by Dr. Harner’s office to discuss the matter further” on April 27. But the record shows Harner was not available to meet with Plaintiff after class on April 27, that Plaintiff was directed to speak with others, and that 38 minutes after communicating this information to Plaintiff, Harner submitted a PSC referral alleging a potential safety concern.

The court concluded that, based on this, plaintiff’s First Amendment objections to the PSC referral could go to the jury:

Based on the above facts, a jury could find that Harner had a personal disagreement with Plaintiff’s views on transgender issues, that this personal disagreement was the motivation for initiating the PSC referral, that Harner’s personal disagreement tainted the PSC process, and that Defendants’ ultimate decision to withdraw Plaintiff from the PSC program was based on personal disagreements with Plaintiff’s views and not on defined professional standards.

The court also concluded the same about plaintiff’s breach of contract claim:

Plaintiff asserted Harner did not comply with Manual language requiring that “individuals who are directly involved should make a concerted effort to resolve the concern prior to a referral to the PSC” and stated in her breach of contract claim that UWT failed to “follow[] the policy measures it had implemented and promised [Plaintiff].” Plaintiff also identified UWT’s Mission Statement, Race & Equity Initiative, and Diversity Blueprint and other “fundamental principles of inclusion and expression embodied in its own written policies and promises” and asserted UWT violated its promise to “conform[] with academic standards espoused in governing documents as expressed above in the factual allegations.” …

Here, the PSC guidelines found in the Program Manual directs that individuals, in this case Harner, involved in a concern “should make a concerted effort to resolve the concern prior to referral to the PSC.” UWT also acknowledges it has “the obligation to maintain conditions conducive to freedom of inquiry and expression to the maximum degree compatible with the orderly conduct of its functions.”

These provisions give rise to a reasonable expectation that a student, such as Plaintiff, would not face sanctions based on a professor’s personal disagreement with the student’s views on transgender issues and that the student would be given the opportunity to resolve a concern before being referred to the PSC.

Joan K. Mell (III Branches Law PLLC) represents Arias.

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