The plaintiff in this case, Mills, is a tenured theater professor.?? ?The University received numerous complaints about him from students, staff? and? faculty? members.?? ?He? threatened? to ?kill? people, brandished a knife in class, and carried a gun. ?He also made grossly sexist and homophobic comments to and about his colleagues.?? ?He? verbally? abused? both? students and staff.?? During class, he suggested a student who was undergoing treatment for cancer would have been better off dying. After ?five ?years ?of ?this ?type ?of ?behavior, ?the Provost ?placed ?Mills ?on ?paid ?administrative suspension, pending an internal investigation. Formal?? charges?? were?? eventually?? lodged?? for violation of the Faculty Ethics Code.?? Over the objections of both Mills and a newspaper reporter, the disciplinary hearing was conducted in secret. The Hearing Panel recommended suspension without pay for two academic quarters.? ?Mills sought administrative review in the Superior Court, which denied relief.? He then appealed.

The appellate court rejected his argument that the disciplinary?? action? ?violated? ?the?? terms? ?of? ?the Faculty Handbook. ?The court dubiously held that a provision preventing the suspension of a faculty member, following the filing of formal charges, absent a showing of immediate harm, had no application to suspensions before the filing of charges. ?The appellate court rejected the claim the Faculty Ethics Code?s provisions were so vague as to violate due process.?? The court also found no violation of Mills? right to academic free speech. The court noted that most of the conduct at issue had? no? relationship? to? any? pedagogical? purpose, and did not occur in class. ?With respect to Mills? in class conduct, the court agreed with the Hearing Board?? that?? none?? of?? it?? serve?? a?? legitimate pedagogical purpose. ?The court held that invective and insults were not legitimate teaching tools.

The appellate panel agreed with Mills that the University violated the Administrative Procedure Act? by? closing? his? disciplinary? hearing? to? the public.?? The court held that a Faculty Handbook provision allowing secret hearings, contrary to the APA, was unlawful.?? It reasoned that an internal agency? procedural? manual? is? not? a? provision? of law, and that the handbook closure rule did not fall within the delegation of powers to the Board of Trustees ?under ?state ?law.???? The ?handbook ?was merely a contact which could not avoid the terms of ?state ?law.???? The ?court ?ruled ?that ?the ?APA violation? entitled? Mills? to? a? new? disciplinary hearing because the prior hearing was an ?unlawful procedure.??? ?Because ?Mills ?was? the ?prevailing party, and the position of the University regarding the hearing closure was not substantially justified, he was entitled to attorneys? fees.

Mills v. WWU, 150 Wn. App. 260, 208 P.3d 13 (Division I, May 26, 2009) (Dwyer, Appelwick, Leach).