Punishment Without Crime: Professor of Political Science at Colorado College David Hendrickson’s Letter to ‘The Catalyst,’ April 11, 2008

By on April 11, 2008

There is one aspect in the case of “The Monthly Bag” to which not much attention has been paid, but which is of commanding importance. It concerns the procedures observed during the disciplinary hearing of the two students, including the manner in which charges were brought against them and the nature of the interrogation they underwent. People have naturally focused on either the initial act (the posting of “The Monthly Bag”) or the verdict (guilty of violating the school’s code of conduct policy regarding violence). I discussed those aspects of the case in my letter to the Catalyst last week. This essay will focus on the disciplinary hearing that occurred between the initial act and the verdict.

I played a bit part in these proceedings, reading a letter to the committee attesting to the good character of the two accused students and commenting on various aspects of the case. What I have to say, however, is not based on that brief appearance but on conversations afterwards in which I garnered a sense of what went on in a hearing that lasted some three and a half hours. For the record, I was unaware of much of this when I wrote last week’s letter to the Catalyst, but it may well be the most important aspect of the entire case.

The hearing went something like this. A variety of statements were procured alleging that the offending poster was intended to “target certain campus populations with the intention of devaluing, intimidating, or even threatening harm.” Such behavior, the summary of charges read, “could be found to be in violation of, but is not limited to,” a wide range of prohibited conducts, including dishonesty, vulgarity, abusive speech, and threats of violence. It was further noted that the college “reserves the right to suspend or dismiss any student whose conduct is regarded as being in conflict with the best interests of the college or in violation of its code of conduct.”

Such was the formal indictment. A further detail of particulars was contained in the statements of various complainants, made available to the accused on the Friday before the Monday hearing. According to Chris Robinson’s recollection, among the written charges were the following: that “The Monthly Bag” was sexist, misogynist, and homophobic; that whereas feminists are oppressed and need “The Monthly Rag,” men are the oppressors and shouldn’t be able to make fun; that sex with women (by men) shouldn’t be portrayed at all, especially not if the woman is in submissive position; that the authors employed false statistics and faulty research that was misleading and detrimental to our values as a community, and that any woman who would write in favor of the two accused students was capitulating to the patriarchy. There was more, but this sufficiently indicates the nature of the allegations.

The committee, around ten in number, consisted of both students and administrators but did not include Dean Edmonds, who was out of town. The formal responsibility of the committee is to educate the Dean’s decision. Among its inquiries were the following: Have you ever taken a feminist and gender studies class? Have you ever felt threatened on campus? What is feminism, to you? What is traditional masculinity, to you? What do you think your position in society is? How do you think this relates to issues of race, class, gender, and power on this campus and in the wider society? What was your intent? Did you write this thinking that your favored position within an oppressive power structure would absolve you of accountability for your acts?

This account is based on Chris Robinson’s depiction to me of what went on, which I requested from him. It is not a full account. I edited out some of the riper vulgarities among the allegations. I omit, too, the answers that Robinson offered to these accusations. As a general depiction of both the allegations and the questions, however, I believe it to be essentially accurate.

When I appeared before the committee, I was told that everything was entirely confidential and that I was not to breathe a word about it to anybody. In normal circumstances, of course, I would bow to such a command, but cannot do so in this instance.

The case raises questions entirely different from those which enjoin secrecy in a typical student disciplinary hearing. Secrecy is a defensible policy in most disciplinary proceedings (involving, say, the drunk and disorderly), and is intended to protect both the accused and the aggrieved. In this instance, however, the facts of the case involve matters of public record. Everyone is capable of making a judgment about whether the posters put up violated the school’s code of student conduct. Everybody is capable of making a judgment of whether the toilet tabloids fell within or without the domain of protected student expression. Both the facts and principles at issue, in short, are entirely public matters, and it goes to the essence of “public affairs” that they need the light of sunshine if they are to be adjudged rightly.

It may be said that the account rendered above cannot be relied upon because it is based on the imperfect memory of the defendant. If so, however, the remedy is plain. There is a tape of the proceedings. It would be an easy matter to transcribe the questions asked of the respondents while preserving everybody’s anonymity. It would also be easy to make known, in a general way, the written allegations the students were required to answer (copies of which were provided the accused students, but which they were not allowed to keep). Those who wish to correct this account in any particular are welcome to do so; all that I maintain is that the defendants are entitled to make public both the allegations made against them and the questions they were required to answer.

I am not a lawyer, but it strikes me as more than a little peculiar that students should have a blizzard of accusations leveled against them and be at the same time forbidden from discussing with anyone either the nature of those accusations or how the tribunal pursued them. “Mother, I have been threatened with expulsion.” “What, good Lord, is the charge?” “I am not allowed to say.” According to my understanding, the common thief has the right to an indictment that charges him with specific wrong-doings. He is not to be charged in general with being a bad guy, but with detailed allegations that are part of the public record, which he may denounce to the world. A junkie gets to have representation, and when she gets to court the prosecutor may not introduce any evidence, but only that which is “admissible.” The accused murderer gets to be evaluated by people who bear no grudge and who are, by various devices, chosen to ensure impartiality, a quality indispensable to justice. The Office of Student Life does allow accused students to have a lawyer present to observe, though not to speak or represent the client, so it cannot be fairly said that in this instance the students were totally denied protections that as a matter of course are extended to thieves, junkies, and murderers. That’s only about ninety five percent accurate.

It is notable that in the letter of reprimand sent by Dean Edmonds to Chris Robinson these various charges are not mentioned. Dean Edmonds confines himself to noting that Chris’s intention was parody, absolving him of any intent to threaten violence, while also finding him in violation of the school’s code of conduct on violence because his poster was received as threatening by members of the Colorado College community. In my previous letter, I commented on the invidious nature of this principle and its absurd relationship to the facts of this case, but will not rehearse those objections here. Instead, I want to dwell on the fact that many vital charges against Robinson, which he was made to answer under threat of expulsion in the hearing, are not even mentioned in the Dean’s letter. It is as if the jury, asked by the judge whether it had reached a verdict on the fifteen indictments against the defendant, pronounced itself on indictment thirteen and then left the room without explanation. “What about the rest?” the judge cried longingly. “Yea, that’s right, what about the rest?” seethed the defendant. And answer came there none.

The reason why these various indictments were not mentioned may easily be surmised. To have done so would have drawn attention to the highly politicized nature of the proceedings. To have done so would have plainly demonstrated that there was an assorted collection of infractions whose common thread was that the accused had thought the wrong thoughts and was guilty of ideological heterodoxy. For the accusers, a bundle of feelings, attitudes, memories, and convictions was on trial, for which the accused must be made to answer. And the answer had better be good and contrite, for there are certain attitudes whose mere existence demands condemnation and punishment. That was the general tenor. So far as I am aware, there was no charge directed against the two students that the committee, or whoever it was that decided such things, refused to be allowed into the proceedings. Everything was on the table; everything was fair game. When one accuser insisted that the aspiring satirists should have depicted a woman buggering a man (in language I will forbear from repeating), there was no one to say: “That’s out of order.” The reason is that there was no “order” to be “out of”-that is, there was no fair procedure guaranteeing rights to the accused that this tribunal deigned to recognize.

This entire procedure was in fact an atrocious invasion of the most elementary personal rights. I do not know of any system of jurisprudence in the modern world that would give a formal sanction to this miscellany of unguided missiles directed at the supposed perpetrators. Even despotic states do not acknowledge in public that they follow such disreputable procedures, though they may observe them in fact. No one with any regard for protections intrinsic to our constitutional heritage can view these proceedings with anything other than mingled amusement and contempt. They violated a fistful of basic constitutional protections. The investigating body was partly made up of accusers; the prosecutors and judge came from the same office, which office solicited accusations against the accused; the respondents were not entitled to counsel; the charges against them were not made public record, but instead appeared and disappeared and reappeared in a confusing medley about which only two points were indisputably clear: they were sufficiently serious as to be potentially worthy of expulsion, and they could not bear the light of day. Tragedy and farce, as Marx intimated, are normally expected to succeed one another in history. To join them together in the same instant is a feat not often accomplished, but the Office of Student Life has done it here, at dear old Colorado College.

To estimate fully the farcical character of the proceedings, it is necessary to recur once again to Dean Edmonds’ letter of reprimand. Not only did this delicately pass over the thought crimes alleged against the defendant, but it also did something which is not easy to understand. It found the defendants guilty, but prescribed no punishment (or at least it mandated a punishment so vague as to be later glossed by President Celeste as involving no punishment at all). Surely this is a novel concept in the long annals of a cherished legal heritage. Most trials do not end with the verdict: “You have been found guilty of a heinous crime! Please go back to your room and take a nap.” “You have unconscionably disturbed the peace of the community, threatening the safety of us all! Have a nice day.” What can explain so marvelous a coexistence of two utterly incompatible things? Why do the lion and the lamb lie so incongruously together?

The answer is not clear. The most plausible explanation is that the Office of Student Life saw, but did not quite want to admit, that it was proceeding on indefensible ground. But still a misleading picture is presented by these incongruous declarations from the administration. Unfolding before you, goes the official line, has been a crime without a punishment, whereas the real truth of the matter is that it was a punishment without a crime. This is so even if the “no punishment” interpretation of the ultimate verdict is accepted, for the inquisitorial procedure was itself a punishment, and an unjust one to boot.

This essay is not intended as a personal attack on Dean Edmonds, for whom I have great respect. It is a critique above all of the procedures of his office. Though I deplore his decision in this instance, it may be that he was unaware of the more egregious doings of the tribunal (at which, as previously noted, he was not in attendance). Lest observers jump to unfair conclusions, it is also important to note that a faculty representative of Feminist and Gender Studies was invited to testify at the hearing and complied with that request but did not initiate the proceedings and did not recommend punishment. Far from suspecting the sincerity of such declarations, I heartily welcome them. This suggests a vital point that all sides in the campus furor (as well as outsiders) might take to heart: no persons are to be made a party to any accusation who do not make themselves a party. “Innocent before proven guilty” is a handy rule for public debate as well as legal proceedings. If those who, disliking greatly “The Monthly Bag,” would disassociate themselves from and repudiate the mangled proceedings detailed here, that would be a huge step in clearing the air.

These considerations have shown that the inquisition directed against the two students went far beyond the now dominant rationale, which rests on the duty of the administration to ensure a campus environment free from threats of violence and intimidation. Granting that snap decisions before the facts are known should not be judged harshly, the fact remains that the satirical character of the flyer was blindingly illuminated once the accused students swiftly deposited themselves in the president’s office. After that moment, the prosecution could only be carried forward on the basis of the thought crimes previously detailed. Everything after that moment, in short, was a travesty.

The verdict of guilty should be overturned. The evidence accumulated here also shows that an apology is due to the accused students for the indefensible character of the tribunal erected against them. To accept the latter conclusion is also, in fact, to throw out the verdict, for it is a solemn legal principle that no legitimate end, however ostensibly good, can come from means so tainted and irregular.

The most important thing that should come out of this episode is the assurance that no Colorado College student has ever again to endure such an iniquitous Star Chamber. We cannot protect them against “acts of God” or from their own foolishness. But we can and must protect them from unjust proceedings of which we as faculty are indirectly the authors and for which we are ultimately responsible. The same obligation falls on trustees and administrators. What to us is a duty badly fumbled in this instance is to students a set of basic rights that stand in peril, and it is exhilarating to see them reclaiming those rights and vigorously setting forth the true ethos of this institution. (At the last count I heard, the student petition on free expression had acquired over 500 signatures. Hooray for them.)

The procedures which allowed this tribunal to take place must be changed. A new system must be planted in its stead, one that will ensure that Colorado College students will never again be subjected to the kind of ideological inquisitions that distinguish the annals of tyranny. Any disciplinary tribunal in which there is the merest hint that a student is being punished for politically unpopular opinions has to ensure protections that, the event has showed, were wholly absent in this instance. The process ought to be above suspicion. It is far from enjoying that status now. While the details of such an alternative procedure are a proper subject of further debate, the need for one is powerfully illuminated by this case.

None of this is intended to immunize the authors of “The Monthly Bag” from criticism. In posters and letters people can say what they wish. What was utterly inappropriate in the Star Chamber can be scrawled on the placard-perhaps without propriety, but with perfect confidence in the right to say it. The worst fallout would be some frozen discourse in which mouths were shut and keyboards did not chatter.

Above all, the debate that should come has to be freed from threats of punishment and expulsion. Without that contemptible sanction, we might even learn something from each other; with it, we are lost. Discussion and rebuttal, charge and counter-charge-nay, even the precious arts of parody and satire-then unfold in an atmosphere that has been poisoned by the dank smell of arbitrary power and coerced thought. If we are true to ourselves and to our school, this cannot be.

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