At issue is not whether GW should have a permanent and strong sexual harassment policy, but whether it should be based on one adopted after great debate by the Faculty Senate with input from the Law School faculty, or one drafted by an ad hoc committee of people who perhaps share one view. Because any harassment policy has obvious legal ramifications and legal consequences, it is also important to note that the ad hoc committee’s proposals were found “deeply flawed” by the overwhelming majority of the Law School faculty who considered them because of serious legal problems.
Indeed, the Law School is considering adopting its own sexual harassment policy – a situation some might consider analogous to the medical school refusing to go along with a university vaccination policy.
I became involved in this issue as an attorney who has probably filed and won more legal actions alleging discrimination against women than all of the members of the ad hoc committee combined, and probably the only one to have been termed a “radical feminist” in both The Washington Post and The Washington Times. In other words, I fervently support an effective sexual harassment policy. But the proposed policy might create legal liability for participants in the proceeding and make it more likely that a court will overturn any convictions. Here’s why.
An attorney representing a person accused under the proposed policy could immediately file a civil torts action against any participant for monetary damages, and such a law suit might well be upheld because the proposed policy is defective.
The proposal does not provide procedural rights courts demand from the government, private employers, universities, clubs, etc. The threat of legal action could deter potential complainants and witnesses. Thus a conviction might be much harder – not easier – to obtain, and any conviction would be more likely to be overturned by a court.
What is a court to think of a process where investigations are made of an accused who has no right to see the complaint or contest its allegations; where secret dossiers can be established without a person even being aware that a complaint has been filed and where witnesses who could establish his or her innocence may not appear?
Students and faculty should also be concerned about what a policy with vague definitions might do to free speech. Discussions about touchy subjects like rape, abortion, pay equity, divorce, custody and even gender roles in history or literature could be stifled if a student or faculty member feared a sexual harassment complaint. Indeed, a federal appeals court recently struck down a high school harassment code for just that reason – a decision particularly important because schools have much greater leeway to circumscribe the speech students who, after all, are still minors.
I firmly believe, based upon very substantial experience both in bringing and in defending sex discrimination that a sexual harassment policy can provide the due process protections courts increasingly require and still convict those who engage in genuine harassment. Such convictions are also more likely to be sustained by the courts – and therefore have the needed deterrent effect – than those based upon procedurally flawed hearings.
Findings under an effective policy are also more likely to protect complainants and witnesses from lawsuits – a most important consideration since no sexual harassment policy will work if people are frightened off by potential legal liability from seeking to utilize it.
Finally, a fair procedure will help ensure people are not terrified or harmed for making statements in the context of a classroom discussion which could be misconstrued to be derogatory or critical of one gender.
Some Fairness Problems Under the Proposed Code
* The Coordinator (investigator) may conduct an ex parte (one-sided and secret) investigation (with no hearing) and reach a determination of guilty; a determination which can then provide the basis for unlimited sanctions.
* There is no right to take an appeal or even have a hearing from that determination; indeed, the accused does not even have a right to see a copy of the Coordinator’s determination that he or she is guilty.
* The accused has no right to discovery, or to confront or question persons (including even the complainant) who provide adverse information but choose not to testify. The finding of guilty can be based solely upon hearsay evidence.
* Neither side may require persons who witnessed the alleged sexually harassing statement to testify, even if they are University employees who witnesses the event in the course of their employment. Thus an accused cannot require the testimony of a witness whose statements would exonerate him or her, and a complainant cannot require witnesses whose testimony would corroborate his or her version to appear.
* The accused student or faculty member has no right to see a copy of the complaint, nor to learn who filed it, when and where the supposedly offending statement was made, who else allegedly witnessed it, etc.; a deficiency which can make preparing any defense difficult if not impossible.
* Even after a hearing panel has begun a hearing to determine guilt, the Administration can remove any panel member based upon his or her attitude or other factors; something akin to permitting one party (but not the other) the unlimited right to remove a juror once a trial has begun.
* Although the Faculty Code and the American Association of University Professors (AAUP) provide that faculty members may ordinarily be disciplined only by a panel of his or her peers for other offenses, the two students and one non-teaching staff member (e.g., janitor or food service employee) on a panel could judge a professor’s teaching approach “unreasonable,” and therefore find him or her guilty of sexual harassment, even if the two faculty members on the panel strongly disagree.
-The writer is professor at the GW Law School.