Evidence vs. Credibility: Dr. Bradley Foerster's May 31, 2019 Rebuttal to SACUA Places Unrebutted Evidence and the Bylaw 5.09 Record Before President Mark Schlissel
On May 31, 2019, Dr. Bradley Foerster submitted a detailed rebuttal to University of Michigan President Mark Schlissel responding to the May 24 report of the SACUA Review Committee concerning the Bylaw 5.09 dismissal proceedings.
The submission came at a different stage of the proceedings from Dr. Foerster's earlier presentations to the Medical School Ad Hoc Committee and SACUA. SACUA had now issued its own decision. It had rejected several matters relied upon by the Medical School Ad Hoc Committee, retained others, and concluded that the remaining grounds supported dismissal under a clear-and-convincing-evidence standard.
The May 31 submission responded to that decision and further developed the evidentiary, procedural, constitutional, civil-rights, governance, and academic-freedom objections that Dr. Foerster had raised during the proceedings.
At the center of the response was a question that ran through the remaining findings: how SACUA's credibility determinations related to the evidentiary record on which Dr. Foerster's denials and defenses were based.
SACUA did not simply adopt every ground relied upon by the Medical School Ad Hoc Committee.
Among other things, SACUA concluded that the number of character witnesses presented by Dr. Foerster was not a proper basis for dismissal. SACUA also declined to treat Dr. Foerster's allegedly incorrect or misleading characterization of evidence as an independent basis for dismissal.
Most significantly, SACUA concluded that Dr. Foerster's personal civil litigation should not be considered in determining whether dismissal was warranted.
Those rulings narrowed the grounds supporting dismissal. They did not, however, erase the role those matters had already played during the Medical School Ad Hoc Committee proceedings.
Complete May 31, 2019 Rebuttal to President Mark Schlissel
The complete May 31, 2019 rebuttal submitted by Dr. Bradley Foerster to University of Michigan President Mark Schlissel in response to the SACUA Review Committee's May 24, 2019 report is embedded below. Selected excerpts following the document identify the principal issues placed before President Schlissel.
Open the complete May 31, 2019 Rebuttal to President Mark Schlissel in Google Drive
The May 31 rebuttal focused on that distinction.
The civil litigation had been introduced in the charge letters and addressed extensively during the Medical School Ad Hoc Committee proceedings. The Medical School Ad Hoc Committee's written decision itself discussed court findings concerning Dr. Foerster.
SACUA subsequently concluded that those matters should not form a basis for dismissal.
The same issue arose with the Medical School Ad Hoc Committee's criticism of Dr. Foerster's closing statement. SACUA concluded that the asserted “incorrect and misleading characterization of the evidence” was not properly categorized as a basis for dismissal.
Dr. Foerster's May 31 response then turned to the evidence underlying those closing statements. The rebuttal states that Mr. Daniel Tukel had not rebutted the statements or any of the 160+ pieces of evidence presented by Dr. Foerster to the Medical School Ad Hoc Committee and had “never rebutted a single piece of the 50+ pieces of evidence” submitted directly to SACUA. By contrast, the rebuttal states that Dr. Foerster had responded to every item of evidence presented by Mr. Tukel.
May 31, 2019 — Rebuttal to President Schlissel, p. 12
The distinction was consequential. SACUA narrowed the formal grounds supporting dismissal after the Medical School Ad Hoc Committee proceedings and decision had already occurred. The May 31 rebuttal argued that SACUA's decision to stop relying on particular matters did not answer what effect their earlier use had already had on the proceedings and decision.
The civil-litigation ruling also did not resolve the constitutional objections Dr. Foerster had attached to that record.
The May 31 rebuttal noted SACUA's statement that Dr. Foerster's legal battles on subjects unrelated to the University should be “irrelevant to the serious process of dismissing a tenured faculty member.” The response then asked why those matters had nevertheless formed a critical part of the charge letters, why Mr. Tukel had devoted more than four hours and 27 University exhibits to them before the Medical School Ad Hoc Committee, why more than five pages of Mr. Tukel's SACUA memorandum had addressed them while attacking Dr. Foerster's credibility, and what effect that use had on the Medical School Ad Hoc Committee's outlook and the overall trajectory of the case.
The response concluded that sequence by asking why personal civil litigation and associated personal opinions had been introduced as justification for dismissal when Dr. Foerster challenged their use under the First Amendment, personal privacy, and academic freedom.
May 31, 2019 — Rebuttal to President Schlissel, p. 9
A separate constitutional objection concerned the searches that produced the litigation itself.
Dr. Foerster's attorney, Mr. Cyril Hall, testified during the Bylaw 5.09 proceedings that if the Ann Arbor Police Department search warrants had not existed, there would have been no litigation.
For the underlying testimony, see Mr. Cyril Hall's testimony concerning AAPD Case 17-3517 during the University of Michigan Bylaw 5.09 proceedings .
Dr. Foerster had challenged those searches under the Fourth Amendment. The March SACUA memorandum cited testimony from AAPD Detective Geoffrey Spickard, called as a University witness by Mr. Tukel, concerning asserted deficiencies in the search-and-seizure process. The memorandum argued that the Medical School Ad Hoc Committee never resolved that constitutional challenge and instead relied on what Dr. Foerster characterized as the “fruit of the poisonous tree.”
The relationship between the issues was direct:
AAPD searches and search warrants → litigation that Mr. Hall testified would not have existed without those warrants → use of the resulting litigation and court record in the Bylaw 5.09 proceedings.
SACUA removed the final part of that chain as a proper basis for dismissal. The decision did not resolve Dr. Foerster's Fourth Amendment challenge to the searches that produced the litigation and resulting record in the first place.
The First Amendment objection was distinct. Dr. Foerster challenged the use of resort to the courts against University employment as an infringement of constitutional protections. SACUA concluded that the litigation was irrelevant to dismissal but did not decide the First Amendment claim on that basis.
SACUA therefore removed the civil litigation from its dismissal analysis. The May 31 rebuttal argued that doing so resolved neither the consequences of its earlier use nor the constitutional objections Dr. Foerster had attached to that record.
The May 31 submission also focused directly on the evidentiary standard governing the proceedings.
Dr. Foerster had located a 2009 SACUA Overview of the Bylaw 5.09 process that had not previously been provided to him. The Overview stated that, if a 5.09 hearing were referred to the Tenure Committee, SACUA should approve a charge identifying:
“The standard of proof for a finding of culpability.”
The Overview further stated that the standard should reflect the AAUP requirement of:
“clear and convincing proof”
for facts bearing on the committee's recommendation.
The May 31 rebuttal placed that language alongside Mr. Tukel's testimony at the May 1 SACUA Review hearing:
“I don't believe that the ByLaw itself identifies a specific threshold standard that's going to be applied. And I don't believe that the report of the Ad-Hoc Committee identified the specific evidence which was applied.”
May 31, 2019 — Rebuttal to President Schlissel, pp. 6–7
SACUA was therefore applying a clear-and-convincing standard on review to a Medical School Ad Hoc Committee dismissal recommendation that did not state that it had been reached under that standard.
The May 31 response also challenged SACUA's treatment of the witness record. SACUA characterized Dr. Foerster's assertion that potential witnesses had been contacted without response as “unsubstantiated.” The rebuttal responded by providing the emails sent to critical witnesses as New Exhibit 2.
The submission then asked why Michigan Medicine witnesses whose names had been used in support of dismissal—including Drs. Ella Kazerooni, Eva Feldman, Patricia Dunnick, Richard Cohan, and Robert Welsh—had never been brought before the hearings and why there had been no provision for Dr. Foerster to cross-examine them.
May 31, 2019 — Rebuttal to President Schlissel, p. 4
At the same time, Dr. Foerster emphasized the absence of direct testimony supporting major portions of the University's case: no member of the Radiology Department, no participant in the ALS R01 grant, and no party involved in the VA termination had testified directly in support of the corresponding allegations.
SACUA nevertheless concluded that the remaining grounds were established by clear and convincing evidence. The May 31 rebuttal challenged that conclusion against the record SACUA actually had before it: substantial evidence described as unrebutted and unreferenced, together with major allegations Dr. Foerster argued were unsupported by direct testimony from the people involved.
The tension between evidence and credibility became particularly clear in SACUA's treatment of the disputed mass emails concerning the NIH grant.
Dr. Foerster acknowledged sending a different email to Dr. Richard Cohan and the mentoring committee raising concerns regarding the NIH R01 grant, but denied sending the mass emails identified as University Exhibits 2 and 4.
The May 31 rebuttal argued that the most direct way to resolve authorship was to obtain the IP-address and source information and determine where the emails originated. Dr. Foerster stated that the University had access to the systems necessary to conduct that inquiry while Dr. Foerster did not.
SACUA instead evaluated the surrounding evidence and Dr. Foerster's testimony. Its report concluded not only that Dr. Foerster had authored or facilitated the mass communications, but that Dr. Foerster had been:
“untruthful, including under oath.”
The May 31 response directly challenged the evidentiary basis for that credibility determination. It stated that no IP-address evidence had been provided despite repeated requests and that Dr. Foerster had asked SACUA to provide the electronic information and access necessary to retain an expert to investigate the emails' origin. The rebuttal states that the offer was not referenced in SACUA's report.
May 31, 2019 — Rebuttal to President Schlissel, pp. 13–14
The outstanding request was also documented separately before the May 31 submission.
In a May 26, 2019 letter to Mr. Daniel Tukel included as an exhibit to the May 31 rebuttal, Dr. Foerster wrote that Mr. Tukel had:
“not provided me with a single IP address despite numerous requests to establish with clear and convincing evidence that I sent those ‘mass emails’...”
The letter also requested the source of Dr. Foerster's personal recordings and expressly contrasted the circumstantial evidence being used with the “direct evidence (sources, IP addresses etc)” Dr. Foerster had requested.
Exhibit to May 31, 2019 Rebuttal — May 26, 2019 Letter to Mr. Daniel Tukel, p. 5 [PDF p. 98]
The distinction was significant. SACUA had made an adverse credibility determination while applying a clear-and-convincing-evidence standard; the May 31 rebuttal placed before President Schlissel the unresolved request for information Dr. Foerster argued could directly test attribution of the disputed emails.
SACUA's twelfth finding elevated the evidence-and-credibility dispute into a new additional basis supporting dismissal.
That finding followed SACUA's own rejection of several matters Dr. Foerster had challenged during the proceedings. SACUA rejected the number of character witnesses presented by Dr. Foerster as a proper basis for dismissal. It declined to adopt the Medical School Ad Hoc Committee's criticism that Dr. Foerster had incorrectly or misleadingly characterized the evidence. And it removed the civil litigation as a proper basis for dismissal, although on SACUA's own stated grounds rather than by resolving all of Dr. Foerster's objections to its use.
Despite this, Finding 12 then focused on Dr. Foerster's continued rejection of other conclusions.
SACUA quoted the Medical School Ad Hoc Committee's finding that Dr. Foerster had demonstrated a pattern of denying responsibility and blaming others. SACUA then expanded the point, stating that Dr. Foerster rejected conclusions reached after “seemingly thorough investigations” by the University and other organizations and rejected University instructions and positions with which Dr. Foerster disagreed.
SACUA concluded:
“This conduct has led to the conclusion by the Review Committee that Dr. Foerster's repeated pattern of behavior supports the Hearing Committee's recommendation for dismissal.”
The May 31 rebuttal disputed the premise that continued disagreement with those findings demonstrated a failure to take responsibility. Dr. Foerster characterized the demand to accept conduct he denied as requiring a:
“forced false confession of guilt under duress.”
The submission followed that statement with an analogy to Arthur Miller's The Crucible and then immediately returned to the evidentiary issue:
“My positions are substantiated by clear and convincing evidence that both committees refused to reference a single time in either of their reports.”
May 31, 2019 — Rebuttal to President Schlissel, pp. 24–25
The continuation on page 25 distinguished rejecting investigative conclusions from identifying limitations in the investigations themselves. Dr. Foerster argued that those limitations had been presented so the committees could assess their effect on the resulting conclusions and stated that the cited examples of conduct were refuted by direct evidence that both committees had ignored.
The rebuttal also expressly distinguished disputed conduct from conduct Dr. Foerster acknowledged. Dr. Foerster stated that he regretted some statements made in personal conversations with Dr. Eva Feldman and Dr. Richard Cohan, while continuing to dispute the use of those conversations and other contested conduct as grounds for dismissal.
Finding 12 therefore brought the evidentiary and credibility issues together. SACUA had rejected several matters Dr. Foerster had disputed, made an adverse credibility determination on others, and then treated the continued refusal to accept disputed conclusions as additional support for dismissal. Dr. Foerster's response to President Schlissel was that those denials were supported by unrebutted evidence that neither committee's report had referenced.
Dr. Foerster closed the May 31 submission by expressly asking President Mark Schlissel to address the asserted violations of due process, academic freedom, University Bylaws, AAUP Guidelines, civil rights, and the U.S. Constitution developed throughout the rebuttal.
Immediately before that request, the submission separately identified asserted violations of academic freedom. Dr. Foerster argued that initiating dismissal proceedings in response to concerns raised in the public interest infringed academic freedom and had a chilling effect on faculty speech. The rebuttal also characterized the use of personal civil litigation and references to political figures in seeking dismissal as violations of academic freedom and First Amendment rights.
The request to President Schlissel was explicit. Dr. Foerster stated that these were matters on which President Schlissel's “specific responses” were anticipated and asked how the proceedings could be consistent with getting as close as possible to “the truth of the matter” given the asserted difficulties obtaining evidence and witness testimony.
May 31, 2019 — Rebuttal to President Schlissel, p. 34
The May 31 submission was a direct response to SACUA's decision issued seven days earlier, not simply a repetition of arguments made before SACUA ruled. It addressed SACUA's application of the clear-and-convincing standard, the Medical School Ad Hoc Committee grounds SACUA rejected and retained, the new finding that Dr. Foerster had been “untruthful, including under oath” concerning the disputed mass emails, and Finding 12's reliance on the continued rejection of disputed conclusions as additional support for dismissal.
The submission also further developed the record supporting Dr. Foerster's objections. President Schlissel received the newly located 2009 SACUA Overview, Dr. Foerster's challenge to SACUA's treatment of more than 50 pieces of evidence submitted directly to the Review Committee that the rebuttal states Mr. Daniel Tukel had not rebutted, the additional documentation concerning witness contacts, and the continuing request for IP-address and source information for the disputed mass emails.
President Schlissel therefore received a developed response to SACUA's decision centered on a fundamental dispute between evidence and credibility. SACUA had resolved disputed matters through adverse credibility findings and then treated Dr. Foerster's continued rejection of disputed conclusions as additional support for dismissal. The May 31 rebuttal placed the evidentiary conflict directly before the President: Dr. Foerster's defense against the allegations and his denial of disputed conduct rested on an extensive evidentiary record that was unrebutted by Mr. Daniel Tukel and unreferenced in the reports of both committees.
5.09 Documentary Chronology
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Selected Reporting
- Bradley Foerster Submits 140-Exhibit, 1,121-Page Documentary Chronology to FBI for Supervisory Review of the Investigation Involving Dr. Bradley Foerster, Dr. Myria Petrou, and Duaa Altaee
- From One FBI File to a Legislative Proposal: Peter and Maria Foerster Ask Senator Van Hollen's Office and Congressman Jamie Raskin to Consider a Uniform Administrative Framework for Federal Investigations
- Eva Feldman Documentary Chronology: 139 Exhibits on NIH R01NS082304, University Proceedings, and Federal Investigation — No Response Received
- Bradley Foerster and Myria Petrou Send Ann Arbor Officials Documentary Chronology on AAPD and Related Federal Investigations — No Response Received
- Timothy Lynch Documentary Chronology: 63 Exhibits on University of Michigan Office of General Counsel, University Investigations, and Law Enforcement — No Response Received
- Bradley Foerster and Myria Petrou Documentary Chronology: 8 Exhibits Document More Than Two Years of Efforts to Trace Bank of Ann Arbor's $1.4 Million Sheriff's Sale Credit Bid — No Response Received
Brad Foerster, MD PhD
Brad Foerster is a FOIA advocate documenting requests, transparency disputes, and accountability investigations involving public agencies, universities, police oversight, and Russia-Gate related inquiries. His work compiles original documents, timelines, and analysis of public records and institutional responses. Brad is also a board-certified radiologist, author of Town & Gown, and has published over 40 peer-reviewed articles. Brad lives in Potomac, Maryland with his family and is a member of the Montgomery County Medical Society and the Takoma Park U.S. & World History Book Club.