ALEXANDRIA, Va. (CN) — An English professor who questioned whether the Navy is unfair to men in the way it investigates sexual assaults wants the Fourth Circuit to revive his retaliation case.
A resident of Davidsonville, Md., Bruce Fleming framed his case as one of constitutional infringement, saying the punishment he faced from the Navy was intended to chill his rights to free speech.
This past September, however, U.S. District Judge Richard Bennett found Fleming’s claims “entirely precluded” under the Civil Service Reform Act. Dismissing the suit in Baltimore for lack of jurisdiction, Bennett said that the discipline Fleming faced fell “below the CSRA minima for major and minor adverse personnel actions.”
But Jason Ehrenberg, an attorney for Fleming with the Washington firm Bailey & Ehrenberg, said the lawsuit deserves to go forward.
“Professor Fleming’s case involves important issues of academic freedom that will affect professors and students nationwide,” Ehrenberg said in an email, discussing his client’s Nov. 11 notice of appeal.
Ehrenberg noted that the “command investigation” that the Navy opened into Fleming’s conduct is “a procedure that is normally reserved for troops in the field of battle.”
Appeals of federal lawsuits in Maryland go to the Fourth Circuit, located in Alexandria, Virginia. Neither the Naval Academy nor the Navy responded to requests for comment.
Fleming had been teaching English at the U.S. Naval Academy for nearly three decades when he gave the lecture at issue in an Aug. 30, 2013, discussion with one of his creative-writing classes.
The professor says two women in the class became offended because he asked the class to consider whether the Navy’s Sexual Assault Prevention and Response Program places “potentially one-sided burdens and presumptions ... on males.”
Fleming ultimately received a letter of reprimand and he was denied a merit-pay increase.
“You abused your position and influence in an attempt to harm the reputation and potential future careers of the midshipmen,” the letter had said, as quoted in the complaint. “This is unacceptable and will not be tolerated.”
Before filing his suit, Fleming sought relief from the Office of Special Counsel under the Whistleblower Protection Act of 1989, as well as the Merit Systems Protection Board.
In his 2015 lawsuit, Fleming told the District Court that his speech “touched on matters of unquestioned public concern.”
“Fleming suggested during class that the USNA’s SAPR Program is one-sided burdens and presumptions unfairly stigmatized all men as potential rapists and women as helpless victims, and threatened to punish innocent flirting between the sexes and destroy morale within the taxpayer-funded service academies,” the complaint says.
As explored in a profile of the case published by the Washington Post, which Fleming’s complaint quotes, the Navy’s assault-reporting program came up during his class’s discussion of the poem “Kong Looks Back on His Tryout with the Bears.”
Missouri poet laureate William Trowbridge wrote the work, which contains lines like, “And if it weren't for love, I'd drop/this shrieking little bimbo sixty stories…the wives tasted like flowers and raw fish,” and “here I am, panty-sniffer, about to die a clown.”
One of the students who criticized the lecture was “a sexual assault prevention response guide,” the Post reported.
She accused Fleming of perpetuating “the rape myth,” which the Psychology of Women Quarterly defines as “attitudes and generally false beliefs about rape ... that serve to deny and justify male sexual aggression against women.”
Fleming has come under fire before for criticizing the academy’s policies. In 2005, the professor notes having received a “sharply worded memo” when Proceedings magazine published his opinion piece regarding the “USNA’s policy of granting admission preferences to athletes and minorities.”
In his 2015 lawsuit, Fleming accused the two female midshipmen of filing their “baseless and vindictive” complaints “with the specific intent to have the USNA censor and punish Professor Fleming for criticizing the SAPR Program.”
“The USNA’s actions ran afoul of the Supreme Court’s admonition that ‘[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation,’” the original complaint argued.
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