Untitled

        MINUTES OF A SPECIAL, CALLED MEETING
        OF THE
        ACADEMIC COUNCIL

April 15, 1993

The Council was called to order at 3:35 PM, in 139 Social Sciences, Council Chair Prof. Richard M. Burton presiding. The minutes of the March 25, 1993, meeting were offered for refinement, as needed, and were approved. [However, a transcription homonym has subsequently come to attention. The mysterious "Willis Peter" alluded to by V. Pres. Janet Dickerson refers to Prof. Peter Burian's presentation: "...as well as Peter has said..."]

ANNOUNCEMENTS FROM THE CHAIR

The Chair thanked the outgoing members at this last meeting of the 1992-93 Council for their service to the Council and to the faculty. The 1993-94 Council will first meet next week and the newly elected members have been invited to attend today's meeting to participate in the discussion of harassment prevention issue and be ready for the vote expected at the next meeting.
Immediately following the Council meeting on May 13 the Council will host a farewell reception in recognition of Dr. Keith Brodie and his contribution as President of Duke University. A mailing is intended and all Duke University faculty members are cordially invited. "Please bring your colleagues with you."

HARASSMENT PREVENTION POLICY & PROCEDURES

The Chair introduced the main business of the day by thanking the members of the Harassment Prevention Policy and Procedures (HPP&P) Committee for their hard work in developing the draft document circulated to the Council and now before the Council for consideration in behalf of the faculty: Prof. James Coleman (Law), Ms. Maureen Cullins (Student Affairs); Ms. Kate Hendricks (Asst. U. Counsel), Prof. Madeline Morris (Law), Ms. Rachel Peavyhouse (Trinity Senior), Ms. Ellen Plummer (Sexual Assault Coordinator), Ms. Louanna Roberts (Employee Relations), Mr. Jason Schultz (Trinity Senior), Mr. William Slebos (Human Resources), Prof. Kathleen Smith (BAA, ECAC, and HPP&PC chair), Ms. Diana Swancutt (Divinity Graduate Student), and Mr. Lewis Wardell (Public Safety). The Chair introduced a resolution on behalf of the Executive Committee of the Academic Council (ECAC) and with unanimous support of ECAC, intended for discussion today and for vote one week hence.

BE IT RESOLVED: That the Academic Council approves the harassment policy dated April 7, 1993, and urges its implementation as soon as administratively practical, at which time it will replace Appendix W in the Faculty Handbook.

Discussion of the Harassment Prevention
Policy & Procedures Report

The Chair called for two initial statements before general discussion. Prof. Kathleen Smith (BasSci, ECAC, and HPP&P chair) reviewed the steps, starting from last spring's report to the Council on sexual harassment, with several specific recommendations for revision of current policy and especially for revision of procedures for resolution of sexual harassment claims. This (Beale) report recommended appointment of a task force to provide such revision, and in May, 1992, ECAC charged a University task force to revise the sexual harassment definition and policy. The discussions in the fall [November 10 meeting of the Council] were the result of these deliberations. It was quite clear in the fall that there were numerous problems with trying to define sexual harassment specifically, and more importantly, that a discussion of a policy and definition without simultaneous discussion of procedures was impossible. Starting in January, 1993, a reconstituted committee has taken on the dual charge of revising the policy/definition and drafting the procedures. This committee had the following charge from President Brodie: "The task force has thus far concentrated on revising the University's current sexual harassment policy, most particularly in drafting a new definition providing a uniform policy applicable to all members of the university community. As you continue your work on the sexual harassment policy, the task force is requested to develop a definition of sexual harassment in the context of a general definition of harassment, if the task force deems that appropriate, and to draft a procedure for the resolution of sexual harassment claims."

This Council has received our report. By way of initial comment, it was quite clear to all in the discussion last fall that any policy that attempted to define harassment of any kind must be very careful, in the academic arena, fully to protect academic freedom and the ability to discuss openly any controversial topic, even potentially offensive ideas. We affirm that right in this policy without qualification. The most striking departure in the definition presented to you today from the draft discussed earlier is our recommendation that a harassment policy define harassment generally, rather than attempt to treat sexual harassment separately. We chose this path for two reasons. First, the definition is thereby context-independent. No [special] content, be it sexual, racial, religious, or other, is necessarily suspect. We believe that academic freedom is chilled when any topic is singled out as suspicious and by nature potentially harassing. The fear that by designating material "of a sexual nature" for [special] scrutiny we would impair classroom discussion was raised by numerous individuals from a variety of disciplines and perspectives. The second reason for a general definition of harassment is that there is no implication that any group receives or should receive special protection, or that any group is excluded from protection. Harassment should not be tolerated in the University or work environment. We believe our definition of harassment is not vague, but is specific and stringent in its requirements. It is not harassment when an individual feels offended, intimidated, challenged, or uncomfortable. Harassment is expression or conduct that is so severe and/or persistent that a reasonable person would consider it likely, when all circumstances are considered, to interfere with one's work, education, or participation in University activities. The criteria include conduct or expression that is severe or persistent when viewed from the perspective of a reasonable person, and that has a likelihood of such interference when evaluated considering all of the circumstances.

There is a level of challenge and of give and take that is normal in the University environment. This is not harassment. Harassment is conduct outside the norms accepted by the University community. We believe that such a definition of harassment will work, because we have presented very specific procedures on how such conduct or expression will be evaluated. In the construction of the procedures we used as a guide the Beale report, which recommended separating counseling, mediation, investigation, and hearing, and which also emphasized education, counseling, and informal processes. We have done so. We also incorporated aspects of hearing procedure currently in effect for several constituencies in the University, such as employee grievance procedures, the Faculty Hearing Committee, current procedures on sexual harassment, and student judicial procedures. In addition, we looked at harassment policies of several other universities. We believe strongly that what we propose is fair, is responsive to the rights of the complainant and the respondent, and makes all attempts to resolve disputes in a manner that is least disruptive to the University environment. The procedures are lengthy and detailed, and our accompanying memo briefly summarizes these procedures: individuals who believe they have been harassed may contact an advisor, whose appointment and training is the responsibility of the Harassment Prevention Coordinator (HPC); this advisor, in conjunction with the HPC, will provide information to the complainant about what is and is not harassment, advising them of their options; and, individuals accused of harassment may also receive advice through this procedure. The options are threefold: first, informal resolution in which no formal accusation is made and no records are kept; second, a more formal mediation, after a complaint has been filed; and as a final stage a hearing process. Upon the filing of a complaint of harassment, mediation must first be attempted before a hearing can take place, in order to eliminate complaints that arise from simple misunderstanding or mistake by either party. We have detailed very specific procedures for the hearing process, and for selection of hearing committees, etc., best left for your questions.

Finally, the HPP&P Committee recognizes that the endorsement of these procedures by the Academic Council is only a first step. It is not implementation but simply the first step [toward] implementation. Numerous issues will need development and resolution in the process of implementation, and several of these issues are highlighted in the recommendation section of our accompanying memo, most importantly our recommendation for the open reporting on the efficacy of this process and a formal review of these procedures two years after implementation. We feel that the passage of this policy and set of procedures will allow the HPC and the new President to proceed with implementation immediately, so that we do not go another year without adequate protection against harassment. We hope that the discussion started last fall on what is and what is not harassment -- be it general harassment or sexual harassment -- will continue, together with discussion of the central importance of academic freedom in our community. Both the task force and ECAC (Executive Committee of the Academic Council) believe this policy will further these aims, and we strongly urge its passage.

The Chair next called on Mr. Hardy Vieux (President, Associated Students of Duke University, ASDU) who came to the lectern to represent a basic consensus among the students here at our University, and the student government. After long deliberations with the student members on the sexual harassment (HPP&P) committee and others very much involved in this process, that consensus is that [the Council] should delay the vote [on this resolution] until the students can have more time to look over the [proposed policy and procedures] and have the student body become much more educated about this [proposal]. At this time [the student leadership] feels that a lot of the students do not know its implications, are not very familiar with its details and intricacies, and believe that "it would be somewhat done in a haphazard fashion if voted on by this Council next week." The students feel also that Dr. [Nan] Keohane, as President-elect, should also be an integral part of this process. A vote of the Council next week will leave her out of that [involvement], an incomplete decision-making process. The students ask the Council, basically, to delay this vote in order to have time to let members of the student body become familiar with the details and intricacies [of what is proposed], until the fall of 1993.

Prof. Smith responded to this request to delay by pointing out that the resolution is a recommendation by the Academic Council. It is not implementation. She fully agreed that the students should have their chance to discuss it. Second, Dr. Keohane has been informed of what the HPP&P committee is doing, but has not tried to influence the committee's work or direction. "She wished us luck."

Discussion of the Harassment Prevention
Policy & Procedures Report

The Chair opened the report and resolution for discussion and Ms. Rachel Peavyhouse (student member HPP&P committee), while agreeing that the Academic Council [vote] is only the first step [toward] an implementation process, was concerned that there is no representative body on this campus that represents all constituencies and all communities. The magnitude of such a decision by the Academic Council next week, as a recommendation given to the President, would probably result in ratification of the policy [and procedures as proposed]. The effect would be to silence much discussion that could [otherwise] take place, because there is no current process in which all communities can equally take part [if] recommendation of this HPP&P next week reaches the President in June or July. The President will then [likely] ratify it and "we'll all come back next fall not really knowing what we've gotten ourselves into." This is the end of the year. A lot of student groups don't have the money, time, and energy to educate, and to push this [matter] at the end of the year for a final vote. Next year will begin with a new policy about which the student body is uneducated. They won't be aware of it, of its potential involvement with themselves and their respective minority or sexual groups. While the decision of the Academic Council is only the first step, the magnitude and importance of the decision is such that maybe a postponement would be a good idea.

Prof. Yair Argon (BasSci) asked if a specific reason prompted the two student speakers to require or desire more time to look at this policy [and procedures]? Peavyhouse saw it as a general consensus among student groups she had talked with across the board -- representative groups from the DGLA, Asian Student Association, Mi Gente, the Women's Coalition, among others. It's not that there's a [specific] problem with the procedures and policy as they stand; in fact, many of the groups feel very comfortable with it. But their constituencies aren't aware of it. The charge of the task force [HPP&P committee] changed in transit, and the student body and the community at large were never informed of that change. If this proposal were for just a straight across the board sexual harassment policy, adoption at this point would not even be a question. It should be mandated and done today. But a general harassment policy is a totally different issue which involves a lot of different groups on this campus that have not been allowed to contribute to the discussion. It was her sense that those groups had been left out, but this University community is required to keep those voices in mind. Prof. Argon: "There isn't anything specifically in this proposal that you object to?" Peavyhouse responded that as a member of the task force [committee] she felt relatively secure with the policy, but that she was not speaking to the Council as a task force member. She was speaking for students "who can't speak today..."

The Chair summarized this exchange by recognizing that no specific objection to the policy [and procedures] was being voiced. The question is [the timing of Academic Council vote]. Prof. Roy Weintraub (SocSci) asked whether Mr. Vieux for ASDU or the student representatives on the committee could inform the Council how the student members of the committee had been selected, and what ASDU had asked of them in terms of information [back to their constituencies] over the past two years. The Chair invited student members Rachel Peavyhouse or Jason Schultz to respond. After some hesitation, taking the question as involving how students were selected, Peavyhouse said that ASDU has not been involved in the drafting of this policy per se. The student community has been involved only through the appointment of herself and Jason Schultz as undergraduate student members, Diana Swancutt as a graduate student member, and Madelaine Adelman as the previous graduate student representative. She herself had been chosen last fall because of her dealings with sexual harassment and her knowledge on the subject, as well as for her personal experience with the community and with instances of sexual harassment. Madelaine Adelman was not only chosen but employed [to work with the committee], and Diana Swancutt has now followed in that position. Jason Schultz was recently added as the second undergraduate to bring into the discussion "the male's point of view and a representative of the male concerns in regards to sexual harassment". He had worked with many communities, in the Women's Center, and on the Gay, Lesbian, and Bi-sexual task force, making him a likely candidate for this position, if that answers the question. Weintraub asked if there was a provision when the students were selected for their reporting back to the organizations that appointed them. Peavyhouse said there was not. She herself had not served as a conduit for ideas [to] other groups, except as she sought out those groups and informed them of the [committee's work]. "It was not our job to do that." Not our assigned role.

Mr. Lewis Wardell, introducing himself as a committee member and Chief of Police [with Public Safety], asked to speak for 19,000 employees of the University, "12,000 of whom have very little interest in the academic calendar frankly." We work every day, including during the summer and during vacations. There has been harassment and it is ongoing. Call him naive, call him frustrated, not understanding our committee process [perhaps], but he thought we had a committee and that it was representative. We arrived at a recommendation. The Academic Council seems to be prepared to go ahead on this. He appreciated the student view, but this policy is an urgent concern. He urged that it be read, discussed, even rejected if that should be the judgment of the body. But this [policy addresses a problem of such] importance that it should be taken care of as fast as you can take care of it. He was frankly [apprehensive about] putting it off until the start of the next academic year, because he knew how academic years go. You come back and it's going to take a couple of weeks to get into your groups -- these same groups referred to as needing to review this. There are student elections that will take time, bodies to be reconstituted, student committees that need to come back into place, most of which are in place right now. Why don't we just see if we can move quickly for a change on this campus, rather than put this off for another year? He could guarantee, that's what it would take. It will be next spring before we finish this process. "And it will finish without me, frankly."

The Chair sensed enough discussion of timing for the moment and asked for discussion of substance. Prof. Craufurd Goodwyn (SocSci) raised a point of information. On page 3 of the [covering memo] there is reference to "governing boards". What are they? Smith cited Section 4B, 2 and 3, describing the groups composed of ten faculty members, ten employees, and ten students, but then noticed a confusion. This is the Grievance Board, which by a proofing error not yet caught had become "governing boards" in the cover memo.

Prof. John Staddon asked the view of the committee about timeliness of complaints? Was that discussed? Smith said it was considered, and the HPP&P requires that complaints should be reported as soon as practical, but in no more than one year. There was debate whether 180 days or one year, resolved by a decision to extend it to one year, precisely because of the academic calendar and vacation periods [just alluded to]. [Complaints] must be reported within a year of the last occurrence [of the alleged harassment], and there are other specific dates governing the progress, of response and such.

Ms. Madelaine Adelman (former graduate student member/employee of the committee) had done research for the committee last year, and the biggest gap she saw in the present form of the policy -- "which it is exciting to see in its final form right now" -- is the footnote on the one-page statement of policy. It says that consensual, welcomed sexual relationships that may raise conflicts of interest are beyond the scope of this policy. She was curious to know the reasons for deleting that [aspect] from the policy that was suggested last semester, passed by ECAC, and which had included a section on consensuality and the problems that it represented, mostly for students. If it's beyond the scope of this policy, what policy does it go into, and who is responsible for addressing this intricate, complicated issue, related to sexual harassment? Smith said the reason it was dropped is that the statement that was in the prior policy [was indefinite], saying that consensual relationships may or may not be a defense in essence, and not really saying anything else. The prior policy attempt raised that issue, but didn't say whether or not that was an adequate defense, or an inadequate defense. It had some language about looking unkindly on that [circumstance] as a defense, meaning very little. But the committee did not now see that consensual relationships were a harassment issue, but a conflict of interest issue, and those are raised in a number of places. Adelman felt that depended on how one defines consensuality, and harassment, and how the problem can be resolved if it becomes a problem. Smith said if such problems arose [within a context of complaint of harassment] then it would be the task of the hearing [panel to deal with them]. It could occur that one person is saying [a relationship] was consensual and the other that it wasn't, a difference that a hearing [process] might have to resolve.

Still troubled, Adelman thought that [reducing this matter] to a footnote on a one-page policy could serve to highlight this thing called consensuality and unwelcomed relationship, raising questions without answering them. Smith saw the [residual] footnote as leaving up to the reader a responsibility to say whether this is [a problem or option] or not. It will be the role of the Harassment Prevention Coordinator (HPC) for such education, saying for any question whatsoever that it gets into the system. That's the most important thing. We could eliminate the footnote if there is a movement to do so. Adelman agreed with that suggestion, but remarked that the mandate for education did not seem to be included in this statement of policy and procedures. Smith said it was in the further recommendations, satisfying Adelman, and prompting Ms. Diana Swancutt (committee graduate student member) to propose striking the footnote. The Chair asked the committee to take that suggestion under advisement, prior to next week if possible. Prof. Michael Moses (Humanities) asked if that meant it would be deleted or not, by determination of the Council, or that it just goes back to the committee? The Chair clarified that he was asking the committee to reflect on this matter between now and next time, and to propose at that time a final version of the policy, indicating what the best thought of the committee was. Moses thought the Council had heard an articulation of the committee's thought, but Smith felt it still needed to be discussed within the committee.

Prof. John Staddon (NS&M) from his admittedly preliminary study of the HPP&P thought that the committee had very successfully walked on eggs. The one-page statement of policy is a remarkable achievement. But could any of the legal experts here speak to point 2B about hostile or intimidating environment. He would like to hear someone with expertise in this kind of phraseology in the context of free speech comment about it. Responding to invitation of the Chair, Prof. Madeline Morris (Law, committee member) identified the issue of hostile environment as a defined form of discrimination developed first in the racial area and then extended by the Supreme Court to the area of sexual harassment, with [the concept of] hostile environment created around those issues. There is always a trade-off in all free speech context, whenever that freedom comes up against the next person's nose, the usual question of when does one person's freedom start to so impinge on the next person's freedom in fact that some adjustment has to be made. When that freedom is in the context of speech, of course, there are many more legal protections that come into play. But, those protections do have limits, in a variety of ways. Some kinds of speech are defined as not protected at all -- obscenity, or fighting words, picking a fight with someone through speech. These are areas that are just defined as not protected. And there are other kinds of speech, defined as protected, that can still be outweighed in their protection by a compelling governmental interest, or here of course a compelling University interest. That's the free-speech groundwork entered into when we ask what the effect is [of] a hostile environment created through speech on the free speech side of the equation. Generally, examples have arisen in the area of employment discrimination, for example the fighting-words kind of hostile environment, just picking on someone with speech that would be defined as just a way to pick a fight. That's one example of a groundwork under the hostile environment area [in relation to speech]. Another is the [existence of a] compelling outweighing interest, with an example here in people not being able to do their work, as students, as staff, as faculty, against which we have to weigh the free speech interest, even if we consider [that] speech protected. That's the general framework, with the bottom line that hostile environment provisions have been found to be constitutional in the First Amendment context by the Supreme Court and other courts. She hoped to have explained some of the reasoning behind the policy in relation to the prompting question.

Prof. Staddon decided to try an example case. Suppose a professor with a small seminar, where one of the students was a passionate religious fundamentalist. Suppose the professor provocatively discussed [biological evolution] in relation to science and religion and in a way that was felt to be offensive by the student. Would that fall under the harassment policy? Morris felt that in any such example one would have to develop every aspect of the case, the context, the particulars, more than can be effectively done without an actual case before us. But the policy would always be limited by the requirement that the person in question be not unreasonable in their reaction. The mere fact that a person is offended is not enough. Within an examination of the whole context would the reasonable person under all of those circumstances have been offended? Someone might be really offended, but unforeseeably. [The return of that word from the November 10 discussion prompted an echo of sorts.] Morris continued that if a person was really offended, but unforeseeably so, that would not be covered. But then the question becomes of course what is the context that we're looking at? The religious fundamentalist is not by definition an unreasonable person. Within a hearing the question then is what all the factors are that we're going to have to take into account, finding out whether given what the professor knew, given the beliefs of the student, given the context in which it occurred, was this [effect] reasonable or unreasonable? Perhaps the student and teacher were in a mentor relationship, which might make the standard of behavior for the professor different then if this were in a [much more impersonal] undergraduate course context. There would be lots of different factors that a panel would weigh in determining how egregious and how foreseeable the interchange, and the level of impairment of functioning that one could expect from it. Again, going back to the First Amendment free-speech legal context, the full context is always taken into account, the persistence, the severity, all of the factors, the relationship involved between the two parties. These all have to be taken into account before the weighing ultimately of the speech versus the harassment is finished.

Prof. Staddon saw it as conceivable in that context and that effect that the behavior of a professor engaged in an academic exercise nevertheless could constitute harassment if all these other factors were weighing against him in a way just described. Morris couldn't imagine offhand trying to go through all of the factors that would need to be considered, nor could she imagine [that such an example] could ultimately be determined to have been a violation of the policy. Someone might be able to think it through, filling in the blanks in such a way that it [could equate to harassment], but it [didn't strike her as likely]. Prof. Michael Borowitz (BasSci) was confused to have heard this discussion of "offensive" when the word nowhere occurs in the policy and procedures under consideration. He found it admirable that the policy addresses a hostile environment that is likely to interfere with an individual's work, education, or participation in a University activity, or adversely effect an individual's living condition, which he saw as much stricter standards, which Morris agreed was a good point. "Pardon me for adopting the offending language." Staddon said his use of "offensive" was a convenient shorthand.

Prof. Daniel Livingstone (NS&M) had a problem with the second part of that same paragraph. From a biologist's point of view it seemed to him that [the HPP&P] is specifying a non-operational procedure, that he didn't know any way of identifying a reasonable person, much less determining that reasonable person's reaction to a certain situation. Has this particular wording been used in law? How has it worked out and how do operational procedures stem from this nonoperational [concept]? Morris said that it's used probably more than any other device in the law, even though it works only so so. It's the best we've come up with in the law and is found throughout, actually to provide protection generally for the accused party so that someone's just being bothered is not enough. One has to prove against some reasonable, objective standard applying to most people in such a situation, by reference to a jury. The jury represents the community of reasonable people, if they exist anywhere, and they render a verdict. That is the usual, albeit flawed approach.

Prof. Peter Burian (Humanities) begged leave to say something from an "unlawyerly" perspective. The hostile and intimating environment clause and free speech are somehow in opposition. He invited "all of us who are interested in free speech" to consider what a hostile or intimidating environment as defined in this [HPP&P] does to free speech of those who are, as it were, on the receiving end. He found that to be the focus of the HPP&P document, and what the central focus of Council consideration ought to be. And he saw it always tending to get swept under the rug in relation to other concerns. Smith agreed that protecting the free speech and academic freedom of both parties is the central [purpose].

Mr. Jason Schultz (undergraduate student on the HPP&P committee) said he was comfortable with a general philosophy that, as stated, offensive ideas are sometimes part of academic discourse, but that no one should ever be hostile or intimidating, because those are behaviors, more associated with personal acts towards someone else. But also, the policy should cover all potential areas of harassment, with nothing slipping through the cracks, because then the policy isn't worth anything. That's why the committee honed down the procedures to the narrower functional base, weeding out things that are not harassment. He liked the example of the religion class, which he saw as trying to judge the relation[ships], hopefully in that situation at the informal level. If somebody feels that you are being hostile toward them, they'll go to an advisor or to the HPC and that person will say "let me go talk to the person." They'll come talk to you [addressing Prof. Staddon]. Things will work out, with no record, "just using your example because you said it sort of in first person." Staddon: I feel intimidated. [laughter] Schultz saw these procedures as unlikely to be used to fire people or severely sanction them at the first instance, in view of the 3-tiered approach. There are a lot of options here that don't include sanctions, if it's a misunderstanding, subject to [mediation?] at the second stage.

        Prof. Lawrence Evans (NS&M) added his commendation of the committee on giving us a document we can work with, which he didn't think the previous one was. It was a great improvement. Not everybody will find it perfect but at least we can work with it. But he did have a couple of questions about choice of words and things he saw as left out. As used, "academic freedom" seems equivalent to nothing more than free speech, while free speech he saw as broader than academic freedom. People who deal with the academic environment professionally have academic freedom, but someone who cuts the paychecks in the Payroll Department he saw as not particularly having academic freedom, although they have the right to free speech. He was bothered that the concept of academic freedom is being used here sometimes synonymously with free speech, when free speech really needs to be specified if this HPP&P is to apply to everybody in the University. Part of the University doesn't have academic freedom. Smith said that as stated [academic freedom] includes, but is not limited to, the expression of ideas, however controversial, in the classroom, residence hall, and elsewhere in the University. Evans had read that but wasn't satisfied. Why not just say "free speech"?
        After a brief silence, Morris ventured that maybe this should be taken back into consideration. Her thinking had been not just to seek continuity with the First Amendment. That is to say, we know we're essentially concerned here with academic freedom, and if there are areas of free speech that might play out differently outside the University, then we don't necessarily want to import all those by reference [to free speech]. She felt that had been the reason for the wording. Evans said he'd been influenced by reading the wonderful document by [Prof. William] VanAlstyne [in the Faculty Newsletter] on the First Amendment and academic freedom. He suggested consulting with him about this question. But he did nave a second question, having to do with part 2b again, and with the lack of focus on individuals or small groups of individuals. His understanding of harassment is that it has to be pretty narrowly focused against certain people in order to constitute harassment. "I can be offensive to the entire group by saying something, but I don't think it would be possible for me to harass all of those people by a few words." Smith reminded him that being offensive is not considered harassment. Evans understood that, and liked the language about severity, persistence, and so forth as limiting characteristics, but is it not the case that in order for something to be harassment there has to be a fairly well-defined victim? Smith said someone certainly would have to bring a charge for harassment to be established, and someone would have to justify that charge in terms of "I personally was harassed". That will be the requirement of the hearing process. It is not that there couldn't be specifically one or three people that are harassed in a room of five people, coming up with funny arguments. [But those arguments can't support a claim of harassment.] A claim of harassment has to be brought by an individual and the burden of proof is on that individual. Evans summarized that as no class actions, and Smith agreed.
        Prof. Livingstone wasn't used to finding himself in opposition to Prof. Evans about anything, but in this case thought he overlooks some aspects of the situation, because although the person who cuts the paychecks may not be entitled to academic freedom, that person might possibly interfere with academic freedom. He knew of one institution in North Carolina where the manager of a bookstore claims the right to decide about what texts are being used in classes, which seemed to him an infringement of academic freedom of those teaching classes. Evans agreed that that was absolutely right, but he was worried about the payroll clerk's freedom.

Prof. Moses saw the revisions in this policy as starting from the assumption that it was almost impossible to come up with a widely-shared consensus about what harassment is, any clear objective standards that could be spelled out in detail. Therefore the strategy was to establish a set of procedures that might substitute for such a definition, making the HPP&P something like a rough compromise between a fully judicial system with a set of checks and procedures, case precedents, etc., and a set of administrative principles dictating conduct say within a corporation. He saw many safeguards placed in this policy but noted some that would exist say in civil law that are not [included]. There appear to be no rights to subpoena witnesses or documents. There is explicit exclusion of legal counsel. We have a more secret environment, kept entirely confidential so there's no access by the press. In effect, [the omissions] favor the complainant. In the absence of objective standards there is a set of procedures in which now we're simply left with some individuals' subjective judgments by whoever happens to be brought together as part of the Grievance Board, and with the skill, prudence, and wisdom of whomever the HPC. Smith agreed that is indeed a great deal of responsibility in that position. The committee felt it impossible to describe harassment on a case by case or context independent basis, so that context must be taken into account in any adjudication of whether or not harassment occurred. It is left to the community just as we leave tenure decisions, faculty hearing decisions, undergraduate judicial decisions, and all of those other things to the community. We've built in as many protections as we can. There are hearing appeal processes both for cases that are found against a respondent as well as an appeal if the complainant doesn't feel that the hearing was performed properly, seen as a fairly complete balance. In terms of compelling testimony or having legal counsel, these are not legal proceedings in that sense.

Prof. Moses followed up by remarking that in effect the legal system finds difficulty enough with enormous resources at its disposal, and with hundreds of years of experience, making it seem presumptuous to assume that we can effect such a system without any of those resources at our disposal. It may go fine, but he saw it as really a crapshoot. We really have no idea whether this will prove an administrative and legal [nightmare]. It really depends on the conduct of given individuals, both those who are making complaints, those who are being accused, and those running the system. Smith saw that as true of any University process, such as tenure. Individuals if they wish can go through legal channels completely independent of this provision of HPP&P. That's not precluded. Prof. James Coleman (Law, HPP&P committee) said the HPP&P was not intended to be a substitute for the legal system. The intent and purpose is to establish procedures within the University that permit resolution of such complaints at the lowest possible cost to everybody involved and to protect the confidentiality of people who are involved in the process. The hearing panels will have the authority to require and authorize, if not to compel, without spelling it out procedurally. It's not different from any other grievance procedures.

Prof. Moses saw the question simply as how this [HPP&P] is an improvement over an absence of a policy, a set of procedures with no definition of what constitutes harassment. Coleman saw the question and the [substance] of the procedures as how to determine whether a conduct that is complained about constitutes harassment under the definition. He didn't see an absence of definition.

Ms. Rachel Kleinberg, an undergraduate student, spoke up from the back of the room in further advocacy of postponing [the Council vote] "so that students can have some debate among themselves and get familiar with procedure and the policy itself". She questioned the qualifications of Peavyhouse and Schultz to represent interests of undergraduate students in harassment in general, because they were selected in specific relation to sexual harassment. She saw general harassment covering quite different groups. "Most of the [students] here have been activists, you know, fighting for a sexual harassment policy that works for that [problem area]", but a general harassment policy will directly affect a much larger number of students who have not been made aware that this [discussion of harassment revised in scope] is going on. The claim that waiting until fall is a bad idea because students won't get together quick enough [is wrong]. All kinds of meetings have their best attendance in September. It had not been possible now even to collect all the people who came [to the November Council discussion] because they are busy writing senior theses, etc., in this very busy year-end time. She had posted fliers and had spoken to a lot of those students and so knew that a great number of them are very concerned. They wanted to come, but this is bad timing. "So fall is an excellent time for students to discuss and debate, have forums for discussion, and invite Academic Council members to speak and have their say." Whoever has something to do with [this] policy should communicate with students, because that's what a university is for. Students and faculty should be in on things like this that affect everyone. It is [an important] concern to a lot more people than are here today, because of the time of year.

Prof. Smith repeated that a Council vote is not implementation, but the passing on or voting down of the HPP&P as an expression of faculty position, which the Academic Council represents. Voting Council approval does not mean that the University adopts the HPP&P, but simply endorses a recommendation to the President. Students can meet and give all the feedback into the process that they want to. The committee feels we have to get this process [through this step after] two years since it was started. Vieux asked, for information, what channels this [proposed HPP&P] would go through to become policy. Smith said that would be up to the President. Weintraub asked if it would have to be approved by the Board of Trustees, and Smith didn't know, since she was just presenting it to the Academic Council. The committee's charge was to present its findings to the Academic Council and to the President. The Chair also did not know the answer to that question. It is a recommendation to the President, who takes it under advisement. Clearly, if this Council approves it and it is accepted by the President without substantive modification, then it becomes part of the Faculty Handbook. He did not know whether it goes to the Board of Trustees, but we can find out. Weintraub saw it as conceivable that this Council could vote next week and pass the recommendation on to the President together with the recommendation that the President take counsel from all other groups who wish to be heard on the issue.

Ms. Peavyhouse asked the Chair what the charge of the Academic Council is? She thought a number of those [students] present, including herself, did not know. It was her understanding that the Academic Council makes decisions that affect the academic community. Is that true as stated or was she missing some component of that [Council charge]? The Chair agreed that this is an awkward issue. Matters that usually come to the Academic Council usually more narrowly affect the faculty. This issue affects the University community at large, but still it does represent a separate faculty concern, even as the faculty has concern as well for the entire University. It is not a delegation from the University [for the faculty to decide for the University]. It is true that we do not have as has been said a forum in this University, as such, to discuss matters as it were among all [interested University constituencies]. Our best way to work at that [wider discussion] is with this particular committee, which had representation broadly throughout the University. Their report does come to this [faculty arena] for deliberation, debate, and for approval if the body so [decides in behalf of the faculty]. [In any case the] recommendation goes to the President, who at that time receives it as a recommendation. There are some issues that more narrowly affect the faculty about which the Academic Council would be somewhat more jealous [concerning the pre-eminence of] its recommendations, but that's not to say that this particular recommendation is without considerable force [of faculty interest]. Peavyhouse picked up on that matter of considerable force as the basis of student appeal to the Council [to delay voting until fall]. Council decision does carry [special weight] and students don't have a corresponding forum. The Chair said that the force this body might have on this issue does not mean that others will not have their voice in it after Council vote, and these others can represent their voices in whatever ways they choose.

Ms. Peavyhouse remarked that she normally agreed with Lew [Wardell], after two years working with him, but her understanding at present is that operational procedures to cover sexual harassment under Title VII are already being worked up within the employment sector. And so [Wardell's?] concern about sexual harassment particularly as pervasive and important, making it necessary to form a policy expediently and efficiently at this juncture, is well taken. But at the same time a history should be recognized for this task force [and successor committee], coming from a lack of academic protection on the part of students and faculty as two [constituent] parties unable even to discuss directly [with one another]. And here we are in this forum talking, while she couldn't even talk directly to faculty members about it, [addressing] their opinions about it before they take the vote next Thursday. Smith perceived that Peavyhouse was talking to faculty members, right then, but Peavyhouse explained that she was talking to Wardell. She couldn't pull each member of the Council aside and talk to them, asking their feelings on this issue. "We're all talking through this forum." That was her concern and that of those students attending in the back [of the room].

Prof. Coleman asked again if she had some specific concern [about the proposed HPP&P], and Wardell asked if she was concerned that this is irrevocable, that the policy will be passed for all time and cannot be changed, because she was seeing how difficult it is to get a policy passed. Peavyhouse said that was right, and Wardell said he felt the same way but was a little more optimistic about [the prospects]. There will be development of case precedents on these matters, and truly we will have something that is new, that does not have precedents. We'll be setting precedents with every hearing [initially]. Also, you cannot anticipate every possible problem with the law. He should know that because [Public Safety has] to enforce laws that are unenforceable as written, and on a daily basis. They are used to having to depend on finding precedents, and to setting precedents. And sometimes you have depend on a jury of unknown quantities and hope that they are reasonable. I think you [to Prof. Moses] said this [HPP&P] is no better than having no policy at all, but he [Wardell] would seriously disagree with that view. We're operating in a vacuum. It has been an urgent concern for years, not just on sexual harassment, but on all forms of harassment. He dealt with these things on a day-to-day basis, as do many people in this community, and we don't have resources right now to deal with them. So he would like to get this policy and these procedures in effect, and if need be to continue working on fine tuning, honing, correcting, going back and realizing that we haven't imagined every hypothetical case that we might come up against. We will do that as cases may come up against this policy and it doesn't work. Then we'll fix the policy. We would be giving ourselves too much credit if we thought that this [HPP&P] was going to be perfect from the outset. But in lieu of recognizing any serious problems with it right now, either in language or in procedural definitions, he would say let's expedite this.

Prof. Smith added that there are specific recommendations in the proposed HPP&P for yearly review, and in the memo from the committee for a thorough review after two years, built in. Prof. Naomi Quinn (CA and co-chair, earlier task force) spoke up to suggest that one way to resolve this issue [of voting next week or waiting until fall] might be to simply build into the understanding a written expectation that at the end of two years, when that review approaches, there will be constructive arenas, devices, and fora for not just the students, but for all segments of the community to have input. So that the provision can be there as part of the operation, and also as part of the process of education contemplated. The Chair thought that could be accepted as a constructive recommendation.

An undergraduate student, Mr. Mitchell Payton, spoke up from the group of several undergraduates in attendance and the Chair asked whether he wished to speak to substance or just further on delay. Payton said he wanted to address the matter of precedents and the two-year review. If the students and the people who are affected by this policy don't understand it, no one is going to bring up any complaints and there won't be anything generating precedents. People don't know that this policy exists, but [think only sexual harassment is involved]. So, if you pass this this year nothing is going to happen. The document will sit in the library somewhere and no one will know about it. Smith pointed out that the accompanying memo charges the HPC, who will be appointed, to be in charge of educational materials. That is explicit in the policy and explicit in the memo, and if it's passed and accepted it will be part of the procedure. The Chair urged that the Council has debated enough the issue of acting on this resolution next week or not. He thought the deliberations on that point were sufficient for Council members to make that decision. The voices have been heard on that point, and student voices had been directly heard in the formulation of the HPP&P. He asked for focus of discussion, if there is any more, on substantive issues having to deal with the proposal and the resolution as presented.

V. Pres. Janet Dickerson (Student Affairs) found substantive in the HPP&P an implicit assumption that an HPC will be appointed, anticipating another administrative position here. She was chair of a committee charged to conduct a search, now at conclusion, for a sexual harassment coordinator. She wondered whether [the committee] anticipated that there will be another position added besides the one that this other committee was charged to identify and hire. Smith said that the committee was leaving that up to the administration. One of the recommendations in the accompanying memo is that, as an early decision of the new President, the person hired for this position and others involved in these general issues of harassment and discrimination decide on this question. The committee did not feel this was theirs to decide, although it had of course occurred to them that a person was being hired for sexual harassment and suddenly we were changing the scope. We [the committee] have met with all the candidates, and have discussed this issue with them, so the potential candidates for this position know that this is the direction of what we were going to propose. But the committee also felt that the reason for widening the scope was very strong, and that we should go ahead with this change and should not try to make a decision on the administrative structure. That was our reasoning. Adelman asked if that meant that the sexual harassment services coordinator is not necessarily the same as a harassment prevention coordinator, or that it might be the same. Smith answered that it was beyond the purview of the committee to change a job description.
Prof. Evans thought "we could have opinion about that". But he wanted to ask about procedures and the composition of the hearing panels. As he understood it, the attempt was to set up rules that applied to people in all sorts of categories as well as faculty. But it has been a tradition at this University and at most universities that when there are hearings of a disciplinary nature with respect to the faculty, the panels for those hearings should consist entirely of faculty. Did the committee talk about that issue at all? It could happen he thought that a panel of five might include only one faculty member. Smith said that there would have to be two at minimum, on a panel of five. For a complaint involving faculty and non-faculty there could not be a hearing representing both the complainant and the respondent with a panel of five faculty. But a panel recommendation for disciplinary action to be implemented by a Dean and the Provost is subject to faculty appeal through the regular Faculty Hearing Committee [which does have all-faculty panels].

Prof. Helmy Baligh (Fuqua) thought that faculty, as people whose job it is to talk and speak, are almost by definition the ones who are going to be complaining most of the time. At the other end of the problem there is no question what constitutes behavior going on tasteless, which prompts two questions. First, a student had walked into his class wearing a shirt that said "Carolina World Champions". Could he be justified in a claim that this represented the hostile environment that prevented him from lecturing properly? Smith said he could claim it but she didn't know how far he might get. [laughter] Baligh continued to his next question. He hadn't said anything about the shirt, but after the student asked a question that he had answered, he remarked that the student risked not getting a very good grade in this class wearing that T-shirt. It was intended as a joke, the class started laughing, and [the student] did too. But, could the student have taken me in for creating a hostile environment? It could mean that humor is out in a classroom. It is this lower end he worried about. Because he as professor could have gone after the student on such a trivial ground as a shirted message, and the student might go after him on an intended joke and cause him a problem. One way or the other. The [policy and procedures] should not allow anybody to charge anybody [else] and cause them problems. The complainant who complains based on trivial stuff should pay. For trivial things, Smith answered, the complainant must go through informal measures and certainly through mediation before anything will ever go to a hearing. So you're not going to jump into a hearing. But second, there is a prohibition against knowingly false or malicious accusations. Baligh said that there's nothing false about the shirt; it says what it says. And how can you say it's false when I say it's a hostile environment. That's how I respond. Smith reminded him that hostile environment is defined in relation to the reasonable person in this community. [laughter] It is not just how the complaining individual sees it. Baligh said so he loses the case, but having dragged someone through it. That's his point. This is a case that happened, and he had not deserved it.

Ms. Swancutt wanted to say respectfully that laughter at that example should be an indication of how this particular claim might fare in a process that is supposed to soothe one's distress. There is no way to prevent unworthy claims, except in relation to the reasonable person similarly situated. Something [says?] that the people in this environment could certainly not find this [criterion met?]. Prof. James Siedow (NS&M, ECAC) sincerely hoped that the HPC and coordinators would put [the Baligh example] to the laugh test and basically inform the student or the professor, depending on who brought a complaint, that this really doesn't constitute harassment. He didn't see that the example had anything that would stand up. One of the really nice things about this HPP&P is that there is room for informal, very informal mediation of these problems. Baligh countered that interestingly the so-called laugh test which Siedow saw to Baligh's advantage is actually to the advantage of the student, because it subjected him to ridicule. He saw his example [here] as actually subjected to some degree of ridicule, although done in good humor.

Chief Wardell wanted to enlarge the discussion by reminding those present that if we do nothing, unreasonable people can always sue us. In fact this alternative is more prominent right now, today, in the absence of an effective policy. So there is no vacuum [preventing redress]. Those feeling injured can always go to the federal government and say, you know, he told me he'd give me a bad mark for my T-shirt. One of the things we're trying to do with this policy is to fill that vacuum so that people like that, unreasonable people, don't file unreasonable lawsuits against the University, because that now happens on a regular basis, with people in his position as targets for such litigation. Anything to avoid that hazard is welcome. So let's just go ahead, try [by our procedures] to avoid having [such complainants] go outside, which is real expensive and real bad for public relations. Let's keep [these problems] right here on campus and say we know how to treat each other. This is a University of intelligent, caring people, [well able] take care of our own problems right here on campus. We go through the same thing on the [Undergraduate] Judicial Board. Having the UJB means you don't have to charge somebody by taking out a warrant, taking them downtown. Having judicial boards for undergraduate and graduate students provides an alternative, but does not supplant these other forms of recourse. We have a choice, whether to go to the HPC, or get sued in Federal Court, with both possible.

The Chair detected no further comments forthcoming and reminded the Council that the resolution of approval for the HPP&P remained before the Council, to be voted on at the next meeting one week hence, unless there should be objection. And with that reminder of things to come the Council adjourned.

[Approved by the Academic Council May 13, 1993. Donald J. Fluke, Faculty Secretary of the Academic Council.]