Wednesday, December 3, 2008

University loses harassment case: “arbitrary, capricious, and unreasonable"

From the University of Georgia:

For the court documents, click here.

Colleges are increasingly being challenged in court when they act in an "arbitrary, capricious, and unreasonable" manner. For many years, The Chronicle of Higher Education has highlighted the different ways that falsely accused, purged, and mobbed professors can "sue the bastards"--and win.

Why do university lawyers act as mouthpieces defending "egregious" actions? Do they give run-away administrators sound legal advice or simply defend the indefensible because they feel relatively immune as agents of the State? In the past, "sovereign immunity" shielded the government from lawsuits but those days are long past. Apparently old habits die hard.

Short of a lawsuit, there is adverse media attention (read FIRE's web site) and the mere prospect of being sued for improper attention to the law. As the Georgia case demonstrates, individual administrators may also be named in lawsuits.

This is a wake-up call for administrators and university lawyers. To date, their risk-aversion has erred on the side of Political Correctness: defending Star Chamber practices and adopting policies that they believe will scrub every instance of harassment, however slight or imaginary, from the face of the earth (or at least campus grounds). It is a dystopian project with a real downside if the person to be "executed" fights back.

Perhaps it is time for administrators to recalculate their risk aversion by balancing the rights of the accused with those of the accuser? What an old-fashioned concept.

To paraphrase Bill Clinton:
"it's due process, stupid."


Anonymous said...

Its a shame that the ethically challenged Seymour Bryson, who participated in the sexual harassment cases at SIUC has left the university. However, Carmen Suarez, the Commissar of Correctness, remains. Perhaps a carefully designed lawsuit will find a way to include her.

Grumpy said...

This particular case is messy (although embarrassing for the University of Georgia).

The important point is the death of sovereign immunity. Several decades ago, these cases wouldn't even make it to court. Universities are far more exposed to lawsuits and they have not carefully balanced the risks on each side of the ledger in areas like sexual harassment, where they invariably throw due process out to show they are "committed to Title IX" and other extralegal considerations. Well, they had better get committed to due process or taxpayers will be chocking up their billable hours.