More Individual Rights Issues at Southern Illinois University–Carbondale
October 2, 2008
by Adam Kissel
It seems that the troubles facing SIUC regarding individual rights keep getting worse instead of better. First, SIUC officials caused a local uproar, as well as some lawsuits, over the dismissal of two longtime faculty members in travesties of due process. Both professors had been told they had violated the university's sexual harassment policy. One of them subsequently passed away in part due to the stress caused by the university's actions.
Then, the university got embroiled in debate over revisions to its sexual harassment policy. The process had been stalled for years despite the efforts of official university committees to persuade two chancellors to take action and protect faculty rights. Carmen Suarez, Director of the SIUC Office of Diversity and Equity, weighed in with some disturbing and inaccurate assertions about what constitutes sexual harassment, to which FIRE responded, pointing out that Suarez's definitions would violate freedom of expression if they were employed on a public campus such as SIUC. Additional debate on the topic has been contributed by the chairman of the local ACLU chapter, Leonard Gross, who argues:
[T]he proposed sexual harassment policy does not accord accused individuals due process rights. Individuals accused of sexual harassment do not have the right to learn the name of their accuser. They do not have the right to cross examine either the accuser or any other witnesses. The right of cross examination is considered fundamental to our system of justice because it is believed that is the best way to learn the truth. Accused individuals do not even have the right to counsel. Furthermore, at the appeals stage, they do not even have an absolute right to present evidence on their own behalf.
For more on SIUC's troubles over the years in this regard, see this contribution by Mark Schneider, professor emeritus in the school's Sociology Department.
Now, it seems that SIUC's Student Conduct Code has its own problems regarding individual rights. According to Cyril D. Robinson, professor emeritus in the school's Administration of Justice Department, the new code as of August 2008 does not pass muster in terms of procedural due process. Writing also as an attorney and as an executive board member of the local ACLU chapter, Robinson enumerates several reasons why he believes students deserve better at SIUC. For example:
Recordings are to be made of hearings. Students are entitled to copies, but they must pay for them. Nothing is said about the cost, which is likely to be substantial. Nor is it made clear how the copies are to be made. Most students would neither have the time nor the skills necessary to listen to such recordings and reproduce an accurate transcript. The university should bear this cost. There appears to be no right of students to have or even to make copies of complaints or other paper records. In a case I had, I had to sit in the hearing room and make copies from my own notes.
Copies of tape recordings are destroyed after the appeal period runs. There is no transcript, so when the recordings are destroyed there is no record of the proceeding.
There seems to be no requirement that the reasoning leading to the decision be set forth in detail, nor is there any record of decisions to form a precedent-based system. There is no way to tell whether a present decision is consistent with prior decisions. There is therefore no way to build a system of "law" as in American appellate law. Each decision is independent of every other decision. It is only the decision-maker who can "secretly" take into consideration prior decisions she or he may have made.
Students do not have the right to have an attorney or legally trained person of their choosing to represent them at the hearing. They may only have an adviser who whispers advice in their ears, which by definition cannot be part of the record. This limitation, when coupled with the difficulties described above for the student to obtain a record for appeal makes it nearly impossible for the student to obtain a procedure consistent with due process of law. Therefore, appeals, and records of these appeals, which are an integral part of the American legal system and of its due process component, are missing. A system without an effective appeal is a clear denial of due process.
Procedural due process is a thorny issue, and as FIRE's Guide to Due Process and Fair Procedure on Campus points out, the amount of due process one deserves depends in part on the severity of the possible punishment. But it looks like SIUC needs to add this topic to the list of issues SIUC must address in order to ensure that its students and faculty enjoy the constitutional rights they deserve.
Finally, I note that Southern Illinois University–Carbondale has a "red-light" rating from FIRE for maintaining policies that both clearly and substantially restrict freedom of speech. For instance, the Student Conduct Code defines harassment in part as "Any invasion of personal privacy which produces or is reasonably likely to result in the humiliation or ridicule of the target...." Sorry, folks, parody and satire—constituting core political speech on any public sidewalk in America—have been banned at SIUC.
SIUC has a long, long way to go to conform to the U.S. Constitution.