I should disclose that I declined to sign the letter (as did my colleague Martha Nussbaum), but not because of lack of sympathy with its basic point. (I now speak for myself, not Martha, though I believe she shares some of these concerns.) I think the letter is too vague about what it asks, and is mistaken in invoking an alleged "free speech" right of Professor McGinn. There is no "free speech" right to defame accusers, to violate student privacy, or to engage in retaliation against a complainant in a sexual harassment matter. (That the university, according to Professor McGinn, did not bring a sexual harassment charge against him is neither here nor there, for reasons I will return to.) Professor McGinn's blog postings over the last month have raised these and other issues. It is my impression that the university has acted to check his violation of FERPA (the federal law that protects student privacy) given what he has deleted from his blog.
I said originally that I thought the material in the public record (i.e., the original CHE article) indicated that disciplinary action was warranted against Professor McGinn, though not necessarily termination. Although Professor McGinn has denied using the word "masturbate" in correspondence with the student, his other admissions since then--particularly here and here--make clear that (1) he sent some number of e-mails with what he deemed to be humourous sexual content (innuendo, etc.) to one of his students, and (2) he cultivated a relationship with the student, one so intimate and unusual (based on "taboo-busting")--though non-sexual on his account--that "it was explicitly agreed between us that if anything in our relationship was felt to be unacceptable it could be stopped simply by saying so." (I have never in twenty years heard of a teacher-student relationship like this.) These admissions, alone--without anything else--would be sufficient to trigger disciplinary action in my judgment, and that is without even taking into account the other serious allegations of sexual harassment that have surfaced. It is not sufficient that the sender of sexual messages, for example, thought them humorous and thought they were so received. McGinn's analogy to those working in the glass factory also does not help: the co-worker subjected to the "blow job" jokes would also have a legal cause of action for sexual harassment. (That the University did not, according to McGinn, raise "sexual harassment" as an issue in securing his resignation from a tenured position is not very interesting; as a procedural matter, the University's interest was in sanctioning misconduct, what the misconduct was labelled is of no consequence, as every criminal lawyer knows.)
When CHE asked McGinn to disclose the harassing e-mails that were allegedly sent, he declined. Subsequently on his blog, he posted what he claimed were friendly e-mails from the victim of his harassment (he has since removed them, I assume because of FERPA issues--there was no context to the e-mails I should add). I think the University of Miami has an obligation (1) to monitor violations of FERPA carefully, and (2) insure that a complainant in what appears to be a sexual harassment matter is not subject to retaliation in violation of the law or university rules.