Pima Community College drops Jared Loughner's math teacher
Editor's note: an update is available to this story. See note at the bottom of the page.
TUCSON (KGUN9-TV) - When Pima Community College math instructor Ben McGahee told the world about his harrowing experiences with his former student, accused mass killer Jared Lee Loughner, the first documented reaction of college administrators was to get annoyed, and to exchange snarky emails about McGahee behind his back.
Their latest action is more direct.
9 On Your Side has learned that the college has elected not to renew McGahee's adjunct teaching contract, which expired over the weekend. McGahee's name does not appear on the Summer or Fall class schedules. The Summer session starts next week.
In response to an email query from KGUN9 News, Vice Chancellor of Marketing Rachelle Howell denied that the college has fired McGahee, and indicated that the door was still open for his potential return. She said that McGahee has worked for the college "sporadically since 2005." She acknowledged that his current contract as an adjunct instructor has expired, "like that of all adjuncts who taught that semester." Howell did not directly address the question of how and why the college selected McGahee's contract in particular for non-renewal over the Summer term. But she did note that the number of adjunct instructors needed for any given semester depends on the number of students who register.
As for his exclusion from the Fall schedule, Howell wrote, "Typically, new adjunct instructor contracts for Fall are not signed until shortly before the beginning of the semester and continue through registration.... Mr. McGahee is eligible to teach in fall 2011 should the need arise."
But that need has already arisen for most of McGahee's colleagues at the college.
Adjunct faculty members often work part-time. Part-time faculty members at Pima College reportedly outnumber full-time staff by about a three-to-one margin. A random check of 100 employees currently listed on Pima's register of mathmatics instructors shows that about 80% of them have been awarded classes on the college's Fall schedule. Logically speaking, given that full-time vs. part-time ratio, it follows that many if not most of those who landed Fall classes must be adjuncts, like McGahee. The employee directory listings do not always differentiate between the instructors by title and status. But some of those appearing in the Fall schedule are specifically noted as being on the adjunct faculty.
If adjunct contracts are not to be awarded until Fall registration, how is it that so many of McGahee's fellow adjuncts already have their Fall class assignments? In response to a follow-up question from KGUN9 News about that, Howell said by email Tuesday evening that McGahee also could yet receive such an assignment over the summer. She pointed out, "The College's District Office is not involved in the scheduling of classes, which is undertaken at the campus level."
The college's on-line jobs page lists current openings for adjunct mathematics instructors. The listing describes the location for the openings as "Multiple Campus Locations." In her update, Howell said that McGahee is welcome to apply for any available opening on any of Pima's campuses.
When reached by email earlier Monday, McGahee declined to comment on Pima's decision to drop him from the teaching roster.
McGahee burst into public view the day after Jared Lee Loughner did. He gave a number of interviews to the media about his experiences with Loughner, describing the student's behavior as bizarre, frightening and disruptive. In an interview with Fox News anchor Shepard Smith on January 9, McGahee explained to a national audience the difficulty he had in convincing college counselors and administrators to do something about Loughner.
Remarks of that type are not the kind likely to endear an employee to his or her superiors, and McGahee's comments certainly didn't. As KGUN9 News previously reported, McGahee's appearance that night provoked a derisive exchange between communications coordinator Paul Schwalbach and administrator Karen Lutrick. The exchange belittled McGahee and gloated that he'd had not been a better communicator. Schwalbach wrote, "Overall, the tone was one of self-aggrandizement: 'Because of my intrepid actions, we avoided a massacre at Pima.' Uh, huh." To this Lutrick replied, "Agreed. I must have rolled my eyes 20 times in the 7 minute interview. At least he wasn't eloquent or charismatic."
McGahee's comments at the time violated a campus-wide media blackout imposed by Chancellor Roy Flores, who issued an edict right after the shooting ordering employees to refer all media inquiries to Schwalbach. After 9 On Your Side revealed the email mentioned above, McGahee violated the ban again by way of an email interview with 9 On Your Side. In that interview, McGahee said that he held no grudge against the administrators who'd exchanged those derisive emails. He then expressed hope that something can be learned from the college's experiences with Loughner. "In hindsight, he should have been treated or evaluated," McGahee wrote. He was very careful not to express any specific or direct criticism of the way the college handled Loughner, and went out of his way to say that he thought Pima Community College was a great place to work. But he concluded, "PCC might have to make its policies more strict."
Pima Community College itself seems to be leaning in that very direction. Last week it announced action steps to bring more expert resources to the table and to improve its method of handling potentially threatening students in the future.
In refusing to allow any of its employees to speak about Loughner, the college has cited, repeatedly, a federal law known as FERPA - the Family Educational Rights and Privacy Act. That law prohibits colleges and universities from releasing educational records from a student's centrally maintained file.
The law does not, however, appear to extend directly to the type of interviews McGahee has given. FERPA guidance posted on the U.S. Department of Education website specifically protects the ability of instructors to speak about their experiences with students. It states the following: "FERPA generally prohibits the improper disclosure of personally identifiable information derived from education records. Thus, information that an official obtained through personal knowledge or observation, or has heard orally from others, is not protected under FERPA. This remains applicable even if education records exist which contain that information, unless the official had an official role in making a determination that generated a protected education record."
Under this guidance, it would appear that under FERPA McGahee is able to talk about any matter regarding Loughner except information in Loughner's file that McGahee personally determined, such as Loughner's grade in McGahee's specific class. In his Fox interview, McGahee did mention the fact that Loughner had failed an earlier Elementary Algebra class. Loughner's heavily redacted transcript shows that Loughner did take such a class in the Fall of 2007. The college confirmed on Monday that McGahee was not the teacher of that earlier class, which would appear to leave him free to talk about it under FERPA.
PCC has already faced one public correction for its overbroad interpretation of FERPA. Earlier this month Pima County Superior Court Judge Stephen Villarreal sided with The Arizona Republic, and found that the college was wrong in trying to use FERPA as an excuse to withhold 255 pages of disputed Loughner emails the college was fighting to keep from the public. In his ruling Judge Villarreal wrote, "Simply because emails exist on a central server and in inboxes at some point does not classify those documents as education records."
If, for the sake of argument, Pima is dumping McGahee because he defied the media ban -- is that legal?
9 On Your Side consulted an employment law expert, attorney Don Awercamp. Awercamp says the free-speech balancing test works in McGahee's favor, noting that the topic McGahee was addressing is of great public concern. But he also noted that should McGahee try to defend his rights in court, he's going to have a tough time of it. "It's the employee's burden to prove that it was an illegal motivation on the part of the employer," Awercamp told KGUN9 News. "And that can oftentimes be difficult burden to establish."
Among the emails the court forced Pima to release last week were several documenting McGahee's struggle to get something done about Loughner.
As 9 On Your Side has previously reported, McGahee's efforts to get Loughner removed from his classroom began on June 1, 2010. That's when Loughner picked a bizarre fight with McGahee over the numeral 6. Loughner, in a vehement but nonsensical confrontation, insisted that the numeral "6" should be pronounced "eighteen," and refused to back down. McGahee was also concerned that Loughner had turned in a math test covered with gibberish, including the words "Mayhem Fest" scrawled across the top. McGahee complained up the ranks. Counselors and campus police investigated but eventually had to tell McGahee that the best they could do was to stick Loughner back in class and tell him to behave himself.
Counselor DeLisa Siddall informed McGahee of that decision by email on June 2. She indirectly acknowledged Loughner's mental issues, writing, "He has extreme views and frequently meanders from the point. He seems to have difficulty understanding how his actions impact others, yet very attuned to his unique ideology that is not always homogeneous." But she concluded that the best the college could do now was to give Loughner a warning. "Since his resolution was to remain silent in class and successfully complete the course, I had no grounds to keep him out of class."
In his response to Siddall on June 5, McGahee did not hide his disappointment with the way things were going. "I talked with Pat Houston on Friday," he wrote. "It looks like the police is not going to follow up with Jared. I really think someone should be in the classroom to assess his behavior. I have no idea what he is capable of doing. I just want our class to be safe. Thanks."
Later, when those words had turned prophetic, McGahee would repeat them to the public by way of the news media.
McGahee is the only one of Loughner's instructors to defy the college's media ban, and to help the public understand what went on between the college and Loughner. At the end of his interview with the Fox News Channel in January, anchor Shepard Smith thanked McGahee, and closed with these words: "One of the great things about America and our system is you can't be punished for something that you talk about."
But in making those remarks, Smith was referencing Loughner's rights. Not McGahee's.
Editor's note: The college now says a "misunderstanding" is partially to blame for McGahee's disappearance from the class schedule, and says it will likely offer him a Fall position. A story update is available here.