SIUC's Sexual Harassment Policy Badly Needs Revision
April 8, 2010
by Adam Kissel
"The mistakes in Southern Illinois University Carbondale's sexual harassment policy," my colleague Azhar says in a letter published in yesterday's Daily Egyptian student newspaper, "are much worse than what could be attributed to minor oversight or simple misunderstanding."
Coming in the wake of deeply controversial prosecutions of two professors for sexual harassment—which led to lawsuits, a free speech crisis, administrative deceit, and possibly even the death of one of the faculty members due to the stress associated with SIUC's treatment of him—what could SIUC possibly be thinking? As Azhar writes:
In fact, SIUC's policy severely misapplies sexual harassment law, violating the First Amendment rights of students and faculty. Not only that, but its procedures for adjudicating sexual harassment accusations deny basic due process to those accused.
The university's policy impermissibly applies the legal standard for harassment in the workplace to all cases on campus, even though to most SIUC students, the university is not their employer. The workplace harassment standard has been repeatedly struck down by courts when applied in the university setting because that standard fails to adequately protect speech rights on campus.
SIUC's proposed procedures for sexual harassment complaints are equally indefensible. The procedures contain no specific requirements regarding a hearing or even notice to the accused about the nature of the charges and basis of the allegations. That's the basic due process that everyone deserves.
Instead, the draft procedures vest entirely too much discretion in the hands of the associate chancellor: discretion to decide whether the complaint warrants an investigation, who the investigators shall be and, ultimately, whether a violation has occurred. Additionally, upon appeal, the associate chancellor determines the composition of the five-person appellate panel.
Needless to say, allowing the person whose decision will be reviewed to have such authority over the reviewing body is unwise.
These shortcomings serve as a reminder that the sad cases of professors John Simon and Cal Meyers are still disturbingly recent. Without major changes, the same issues could be revisited in another case.
See also Jonathan Bean's information and links about this policy and the controversy it has generated on campus—although in my book, students and faculty and the unions who represent them ought to be doing a heck of a lot more to preserve individual rights on campus in this matter. As Azhar concludes:
I hope the Daily Egyptian keeps following the story. It is vitally important because it cuts against the heart of SIUC's role as a marketplace of ideas, where students and faculty members should feel free to speak about contentious issues without the fear of misguided sexual harassment charges and a process weighted against them.
The university needs to do more than define sexual harassment in accordance with the case law. It must restore fundamental fairness and due process to its adjudicatory process for sexual harassment. SIUC must clearly delineate the rights of the accused, starting with the basic rights to notice and a hearing.
It must allow the accused a legitimate opportunity to contest the charges and to confront the accuser. And it must provide an impartial tribunal, rather than vest so much power in the hands of one individual.
Students and faculty at SIUC are most at risk under the current policy. I therefore urge them to speak out, raise awareness on campus and let their opinions be known to the administration. Those who have already engaged in these efforts should continue their activism. The entire campus will benefit from revisions that protect free speech and respect basic rights.