On July 24, the three-member Arizona Court of Appeals reversed an earlier ruling by Pima County Superior Court Judge Stephen Villarreal that the court could not reinstate Kay to her position at the UofA. Villarreal had ruled that although the university had acted in an "arbitrary and capricious" manner in its termination of Kay, he could not rule on her request for reinstatement.
The appellate court decision sends Kay's reinstatement request back to Villarreal. If the judge rules in her favor, Kay could be restored to her position as regents' professor at the university. The Board of Regents is considering a petition for review to the state Supreme Court. The board has 30 days to petition the court.
Kay had reported to university administrators and legislators what she believed were improper billings by the university on federal grants and improper charges by the UofA administration for work that was never performed. She was soon the target of nine investigations and a series of hearings. She eventually was terminated for scientific misconduct and laboratory mismanagement.
Last week, a new panel consisting of three top university medical researchers and two scientists from outside the university found the university's charges against Kay to be without merit. The committee members were asked by the chairman of the UofA microbiology and immunology department to review the evidence presented against Kay in earlier university hearings.
The panel found no scientific misconduct by Kay, no laboratory mismanagement, and that Kay had in fact performed at "an outstanding level of teaching, research and service" as documented in her post-tenure review for 1995 to 1998. In their report, committee members wrote they were concerned with "the lack of compliance with due process" during Kay's hearings. The committee recommended "immediate and full reinstatement" of Kay.
The two outside scientists, Vera Byers of the University of California and Ronald Kennedy of the University of Oklahoma, had even more damning conclusions:
"We also find a pattern of behavior on the part of the University ranging from attempted coercion and threats . . . misinterpretations of findings and continued attempted coercion of members of Dr. Kay's granting agencies and regulatory agencies to persuade them to carry out acts which would damage her."
"It should be the last word on this," says Kay's attorney, Don Awerkamp.
Not likely, though. Kay will soon be brought before the university's Committee on Academic Freedom and Tenure to answer these same charges and, perhaps, new ones.
"It's just outrageous," Awerkamp says. "They're trying to create some new allegations. Who knows when this will end?"