Rights of the Accused

By February 12, 2010

When outlining the procedures for reporting sexual harassment, the instinct may be to focus on creating a safe and supportive environment for the alleged victim. But in the aftermath of two recent cases at Southern Illinois University at Carbondale in which some believe the administration treated two longtime professors unfairly, faculty members there are fighting to make sure the new sexual harassment protocols include adequate protections from trumped-up charges against their colleagues.

The debate over those protocols, which are currently under review while the administration and the faculty union negotiate a new contract, came to the fore again this week as the university begins training its faculty and staff about how sexual harassment complaints may be filed and how the university plans to investigate them.

Among other controversies, the university’s Carbondale campus has been a battleground over the rights of students and professors in the face of administration policies. In 1999, university officials ejected eight students from the student union for picketing a Board of Trustees meeting. In 2006, the university interceded when the the campus Christian Legal Society tried to ban gay students from joining, only to be overruled by a federal court. In 2009, the university drew fire from the Foundation for Individual Rights in Education for confining campus demonstrations to a designated "free speech zone."

The current dispute doesn’t have as much to do with the First Amendment as with the Fifth — specifically, the right to due process. The Carbondale Faculty Senate harshly criticized a draft of the university’s Sexual Harassment Complaint and Investigation Procedures, passing a resolution last fall recommending that certain sections be changed. The professors chafed at the thought that, in the event of a harassment allegation, the associate chancellor could put professors on administrative leave for up to 30 days without sharing certain details about the accusations being brought against them.

"These preemptive strikes can devastate a person’s reputation, even if the facts are later found to be ‘insufficient’ (you are never declared ‘innocent,’ the facts are just ‘insufficient’ to bear the charge!)," wrote Jonathan Bean, a professor of history and self-described libertarian, on his blog last fall. "Why do the Procedures jump to the ‘nuclear option’ without offering milder, sensible alternatives such as a restraining (or no-contact) order?"

The Faculty Senate also objected to the fact that while the draft procedures do permit the accused to appeal any reprimand handed down by the associate chancellor following an investigation, they empower the associate chancellor to pick the members of the appeals panel, making it an ineffective check on the administrator’s power to decide the accused faculty member’s fate.

But the faculty says the administration ignored its recommendations.

"The senate expressed itself very strongly about a number of those issues, and legal counsel for the university blew us off," Mary Lamb, an English professor who serves as secretary of the Faculty Senate and vice president of the faculty union, told Inside Higher Ed this week. The faculty union is currently negotiating changes to the procedures as part of its collective bargaining agreement, Lamb said, but it has little leverage since the probability that the union would strike over this matter is extremely low. "Theoretically, the senate is to advise the administration, but the administration isn’t listening," she said. "So that’s put us in the situation where we have to legally bargain things."

The university declined to provide Inside Higher Ed with the most current draft of the procedures.

Historical Influences

Lamb said the Carbondale faculty are not insensitive to the needs of those who file sexual harassment complaints; they have merely become jaded about the administration’s ability to wield its power justly in such cases.

This skepticism owes in large part to the university’s handling of a sexual harassment charge brought against John Y. Simon, a longtime history professor who was locked out of his office at the Ulysses S. Grant Association and died several months later while on leave. His widow, Harriet Simon, has sued the university for "death action" under the Illinois Worker’s Compensation Act, alleging that the way her husband was treated by the university contributed to his death. "It was like torture," she said. "You could visibly see him going downhill."

Many faculty members argued that the university had not followed due process in that case. The administration said it had indeed followed due process, thought it declined to talk in detail about the case, citing privacy issues. After Simon’s death, officials said the university had been preparing to clear him of any wrongdoing.

Cal Meyers, a professor emeritus of chemistry, was also put on leave after sexual harassment charges had been brought against him. He filed suit against the university, and is currently appealing a court’s ruling that the university granted him due process.

Some faculty members say the administration’s handling of those cases has colored their views of the new policy. "The administration wants to make it possible to do again to others what they did to Simon and Meyers," Lamb said.

Michelle Hughes Miller, director of university women’s professional advancement and chair of the sexual harassment working group, says that while she was not privy to the precise details of either case, it is her understanding that Meyers was expelled from campus after an investigation had been conducted, not merely after a charge had been filed. John Simon’s widow says her husband was locked out of his office immediately, before any investigation had taken place.

Misplaced Paranoia?

Deborah Nelson, associate general counsel for the university, acknowledged that the administration had not taken all revisions suggested by the faculty senate, but said it had good reason. The university should be able to remove professors from campus, even prior to a formal investigation, if safety is a concern, Nelson said. A no-contact order between the accuser and the accused would be insufficient, she said, since it would not protect other students and staff from being victimized while an investigation was going on.

Nelson added that putting a professor on administrative leave is not necessarily a reputation-destroyer, since there are plenty of reasons a professor might go on leave, such as a medical condition. The key is to protect the privacy of all parties to the extent possible. "I think a lot of the faculty have only got a portion of the story with regard to Professors Meyers and Simon," Nelson said. "We haven’t ever told why we took the steps that we took," she added, in an attempt to respect the privacy of those involved.

Linda McCabe Smith, the associate chancellor of institutional diversity whom the new procedures would unduly empower in the eyes of their opponents, said she would bar a professor from campus only in "very narrow situations," such as when there was an assault.

Miller, the sexual harassment working group chair, said that while she understood the faculty’s concerns, the final procedures for addressing sexual assault charges should take into account the concerns of everyone they stand to affect.

"We can’t make procedures that benefit everyone on the campus and are not based on situations that may have been handled right or wrong," Miller said. "The fear of someone being named and then immediately kicked off, I believe, is inappropriate."

However, she added, "I think there is a fear of power being wielded with little control over oversight. And that is a legitimate concern."

Schools: Southern Illinois University at Carbondale