The Commonwealth Court has upheld an arbitrator's decision to reinstate Bloomsburg University assistant professor John Barrett, who was fired for having sexual relationships with two of his former students.

In a May 16 nonprecedential opinion in Pennsylvania State System of Higher Education, Bloomsburg University of Pennsylvania v. Association of Pennsylvania State College and University Faculties, a three-judge panel of the appellate court affirmed the arbitrator's finding that Barrett's conduct did not violate the university's policies against sexual harassment and discrimination.

According to the opinion, one of the two women with whom Barrett had sexual relationships, referred to as “complainant,” notified Bloomsburg officials of both relationships. The university's president, Dr. David Soltz, then notified Barrett of his termination by letter, citing a lack of professional judgment related to both relationships and “'engaging in sexual conduct [with complainant] without [complainant's] consent,'” the opinion said.

The Association of Pennsylvania State College and University Faculties filed a grievance on Barrett's behalf.

Complainant, who began her sexual relationship with Barrett the semester after she completed his course, alleged there were several occasions on which she awoke to find Barrett touching her genitals, which made her uncomfortable, according to the opinion. Barrett, however, denied this ever occurred.

An arbitrator ultimately found that, even if those acts did take place, they occurred within the context of a consensual sexual relationship and did not constitute sexual harassment in violation of Bloomsburg's policies.

On appeal, the university argued that the arbitrator's award required it to reinstate a criminal, but the Commonwealth Court panel, led by Judge P. Kevin Brobson, rejected that contention.

“The obvious problem with the university's contention here is that there is no record that grievant was ever charged with, prosecuted for, or convicted of indecent sexual assault stemming from the alleged acts,” said Brobson, joined by Judges Renee Cohn Jubelirer and Ellen Ceisler. ”Rather, we are only dealing with an arbitrator's finding that if the alleged acts occurred, they occurred within the context of a consensual sexual relationship, which is permitted by the university's policies.”

With that in mind, Brobson said there was no applicable public policy exception that could invalidate the arbitration award.

“Here, the arbitrator considered the university's policy against sexual harassment and discrimination, specifically as it pertains to unconsented physical sexual acts and consensual interpersonal relationships,” Brobson said. “The arbitrator expressly found that grievant and complainant engaged in a consensual sexual relationship and that grievant's conduct did not violate any of the university's policies against sexual harassment and discrimination. Thus, grievant's conduct, as characterized by the arbitrator, does not implicate the public policy against sexual harassment. As a result, the arbitration award does not pose an unacceptable risk of undermining the public policy and does not prevent the university from upholding its obligation to protect the public.”

But Brobson did note that the panel's decision should not be interpreted as disregard for Barrett's “appalling lack of judgment, especially as one who once held a position of trust for complainant.”

Similarly, the arbitrator stressed that her opinion reinstating Barrett should not be construed as condoning his conduct.

“The inherent exploitative nature of relationships with students … calls for greater insight and more restraint,” the arbitrator said. “That he avoided termination here does not mean that he was prudent, kind or wise.”

Counsel for PSSHE, Paul Lalley of Campbell Durrant Beatty Palombo & Miller in Pittsburgh, did not return a call for comment. Counsel for the union, James Cowden of Strokoff & Cowden in Harrisburg, also did not return a call for comment.

(Copies of the 12-page opinion in Pennsylvania State System of Higher Education v. Association of Pennsylvania State College and University Faculties, PICS No. 19-0639, are available at http://at.law.com/PICS.)