Judge says that UA took 'capricious' action in termination of researcher

Marguerite Kay, a former microbiology and immunology professor, was terminated by University of Arizona President Peter Likins last April after a UA Committee on Academic Freedom and Tenure found she falsified scientific data.

Kay, who maintains her innocence, had said she was deprived of a conciliation hearing and legal representation at the CAFT hearing. Arizona Superior Court Judge Stephen Villarreal issued an April 30 summary judgment agreeing in part with Kay.

"The university's actions were arbitrary and capricious when it ignored its own rules and regulations to dismiss (Kay) from her tenured position," Villarreal wrote in his decision. "By adopting certain procedures for the dismissal of tenured faculty, (the UA) was required to follow those procedures before it dismissed (Kay) from her tenured position."

But in a statement released by the university attorney's office Friday, officials said Villarreal's decision was based on what the UA did after the CAFT hearing, and did not comment on the hearing itself.

"The judge found that after the hearing panel recommended dismissal, the matter should have been referred to the Conciliation Committee, and Dr. Kay should have been allowed the opportunity to appeal the appropriateness of the sanction of dismissal to another CAFT panel," the attorney's office stated.

Kay said Friday she did not yet know what the next step would be for her, but was happy with the outcome of the court's decision.

"I was gratified that the judge issued a careful, thought-out decision," Kay said. "He seemed to understand the case we presented to him on due process, and he saw the serious flaws of the investigation."

Don Awerkamp, Kay's attorney, declined to comment on future action, but hinted that the fight will continue.

"This is just the beginning of what could be a long process unless the university wants to resolve it," Awerkamp said through an e-mail interview.

Kay received accolades in May 1996 after she published findings from her Alzheimer's disease research stating that vitamin E reduced some age-related brain deterioration in lab mice. In February 1997, lab technician Cathleen Cover leveled charges of research fraud and scientific misconduct against Kay.

After the allegations were made, the UA Committee on Ethics and Commitment conducted an inquiry into whether a formal investigation was necessary.

The UCEC found that "scientific conduct may have occurred," and CAFT handled two separate investigations. The second was a five-day hearing last April, which found that Kay "falsified, manipulated and otherwise misrepresented data and findings in her publications."

Villarreal dismissed Kay's claim that her attorney should have been allowed to speak at the hearing.

"The court concludes that plaintiff did not have a right to counsel at her scientific misconduct hearing," Villarreal wrote. "As the ABOR-PM (Regents policy manual) suggests, the administrative proceedings are not courts of law."

Absent from the court's decision was an opinion about Kay's guilt or innocence regarding the charges made by the CAFT.

"The court makes no finding as to whether substantial evidence existed to terminate plaintiff for scientific misconduct," Villarreal wrote.

The National Institute of Health's Office of Research Integrity is reviewing the charges of scientific misconduct.

The ORI can accept the UA's decision, reject it and conduct its own investigation or send the case for a new investigation.

Villarreal did not approve Kay's request for reinstatement, back pay and compensatory damages, but did allow for her to receive attorney's fees and costs. The Superior Court judge also said the case should be "remanded back to the Board of Regents for further proceedings."

Aside from her own case, Kay said the court's decision was a "major victory for freedom in Arizona."

"I think it will compel the U of A to follow their own rules," Kay said. "They (UA faculty) are afraid that what happened to me can happen to them."

Awerkamp and Kay will file attorney fees and costs with the court by Friday.