"Report Everything!" "Trust Us!" "Ignore the Procedures!"
Those three phrases sum up a sexual harassment workshop I attended in the College of Liberal Arts. Linda McCabe-Smith (Associate Chancellor of Diversity) and Deborah Nelson (Associate General Counsel) did most of the talking.
Disclosure: I have worked with Linda (on the Chancellor's Affirmative Action Advisory Committee); she is a professional with more common sense than most diversity officials. (Her office has also funded my travel to give presentations on black business history). However, the existing procedures place her (and us) "between a rock and a hard place." She acknowledged that the current procedures are "awful" and things would change under her watch. However, the procedures are still binding. The unions are bargaining and I would urge them to bargain hard for equitable procedures.
In short, we received the following counsel:
*"Report everything" (even if you think it is nothing): the presenters could have spent more time on threshold levels. True, it is up to them to decide cases based on legal standards (thresholds): sexual harassment must be "severe, persistent or pervasive" AND "substantially interferes" with the complainant's ability to work or learn. But the "report everything" mantra may backfire if people do not know (or appreciate) those standards. Individuals may be less likely to report if they think the threshold is so low that trivial things will end up destroying someone's career.
*Don't take the present procedures seriously because they will change (although they are still in effect!). Meanwhile . . .
While I respect Smith's judgment, we need sensible procedures in place that "balance the rights" of the accuser and the accused. We cannot rely on the judgment of one person. Nelson used the term "balancing rights" throughout but her presentation was laden with "defensive lawyering": we must be firm to protect the University from lawsuits. The law requires policies and procedures but it doesn't require the kind that have caused so much trouble at SIUC.
The current procedures reflect a prosecutorial attitude: 98% of the relevant text is devoted to complainants: how to maintain the privacy (anonymity?) of complainants, advice to supervisors on using prosecutorial "tricks" to entrap the accused, and vague passing references to the rights of the accused (two murky sentences repeated throughout the "Resource Guides"!).
Does the respondent have the right to know the identity of the accuser, the specific charges, etc.? Past experience is rife with complaints by anonymous individuals, redacted reports, and a general policy of "keep the accused in the dark." Nelson stated that she would give "dates, times, names" to the accused. The question I will ask of her (and report back here): when? In a previous presentation before the Faculty Senate, Associate General Counsel Phylecia Cole presented her office's practice on divulging information to the accused. I summarized it in this passage (available in the above link):
Professors were a bit taken aback by the Powerpoint slide indicating that Legal Counsel would hand over documents to the accused IF A COURT ORDERED THEM TO DO SO. Otherwise, everything is secret. Look up "Star Chamber".In other words, you have the right to know your accuser if you have the resources to sue us. On this point, see the following post by SIU law professor Leonard Gross: "The Right to Know Your Accuser."
There is a big difference between firm statements against sexual harassment and the present procedures which flagrantly ignore any rights of the accused. The 80 pages of procedures, available here offer 7 avenues for complainants to take against respondents. At all levels, those taking complaints should "express sympathy in a neutral manner." That is all to the good. But when it comes to the accused: "be prepared for anger, denials and defensiveness." The guide then offers ways to prosecute the accused in the initial interview:
“Be very specific about any admissions of certain behaviors . . .”
"If applicable, state that disciplinary action may include the employee’s discharge or student’s expulsion from the university” [squeezing respondent]
“Often discussing the behavior with the respondent, without labeling it as harassment will result in him/her admitting to it.” Gotcha! “Then, if appropriate, sexual harassment can be used to label the behavior and you can explain how it violates the University’s policy.” (BEFORE decision is rendered?!)
The charges may be "insufficient" to take action against the accused but fear not: you may find that "the behavior violated another policy, so disciplinary action is warranted.” This passage reminds me of the ever-shifting "extrajudicial reprisals" described by Aleksandr Solzhenitsyn in Gulag Archipelago (see his chapters on the perversion of the law).
and on it goes.
As for assembling a defense, the Resource Guides offer the following to the accused:
BEFORE A FINDING: two short sentences:
“Respondent may consult with an adviser to learn his/her available options”
Investigators “will afford the respondent a full opportunity to respond to the allegations.”
That's it! Contrast that with the detailed coaching complainants may receive: complaints may be oral (and thus change). The procedures state: "any oral complaint must later be put in writing.” But they allude to questioning the accused with only an oral complaint in hand. The accused, the procedures state, is likely to be emotional so why present anything in writing that might let him/her escape the prosecutors? Wink, wink, nod, nod.
AFTER THE SENTENCE:
”After a finding has been made and disciplinary action recommended, respondent may file a grievance in accordance with the applicable grievance procedure.”
While the advice and protection given to the complainant takes up many pages, the respondent may file a grievance. Where? Against whom? How?
These questions are for Associate Chancellor Smith and Counselor Nelson:
*Where does the "learning environment" begin and end?PLEASE BE SPECIFIC WITH REGARD TO ANSWERING THESE QUESTIONS IN THE FINAL PROCEDURES!
*What information will be given to the accused? Will it be redacted? If so, what information will be redacted and why?
*Does the accused have a right to cross examine the accuser and other witnesses?
*What is the appeal process? The grievance procedure discusses faculty filing against the "administrative officer who made the initial decision"--what does that mean in the context of sexual harassment?
*SIU issues reports to state agencies on the number and type of sexual harassment cases. Are those available to the public at large?
*"False and malicious" complaints: is this the unicorn of sexual harassment cases? This threshold is almost impossible to prove. "False and malicious" is far harder to prove than frivolous -- frivolous is allowed! If this unicorn does appear on campus, the procedures state that “any complaint made falsely and/or maliciously will result in discipline to the complainant.” What is the process?
This blog is not taking the side of the accused or the accuser. It is trying to "balance rights" (Nelson's phrase). We do not need to ask these questions on behalf of complainants because the procedures already answer them in great detail.
Trust is important. But it is not enough. As Ronald Reagan said: "trust but verify."
I urge the Faculty Senate and the unions to remain vigilant.