Recently, the Utah Law Review published a study of sexual harassment at universities and there are a growing number of cases involving students coming forward with accounts of prior misconduct by professors. Notably, this movement has even extended to China, which is not known for its enforcement of sexual harassment laws. In the meantime, Congress is considering legislation entitled “Federal Funding Accountability for Sexual Harassers Act” that would make it more difficult for academics to avoid responsibility by moving to other universities. [For full disclosure, one of the cases this month concerns a former GW colleague, Ezra Wasserman Mitchell, who changed his name from Larry Mitchell before leaving for China.]
At the University of Cincinnati, Professor Bradley Garner has resigned after students raised prior allegations of sexual harassment. Garner is credited with making the Cincinnati’s flute department into a world-class program. However, the department recommended his dismissal (despite tenure) due to allegations of “repeated and systemic sexual harassment” made by two of Garner’s former students. Garner insisted that he was not given due process by the university and denied creating “a sexually hostile environment.”
There have been repeated objections about due process denial in sexual harassment proceedings at universities. Many of these allegations have been discussed on this blog and have been recognized by federal courts in rulings against universities.
In Garner’s case, he said that he was unable to appear before the investigating body but sent written responses. The university issued preliminary findings of the sexual harassment claims based on interviews with 21 students, faculty and staff. When it concluded that dismissal was warranted, Garner challenged the findings. However, when the hearing date rolled around, he again said that he could not make it and proposed the next day. That offer was rejected. He later resigned.
Some students are objecting that the resignation allows academics to move to other schools. In response, Rep. Jackie Speier, D-California has proposed legislationv — Federal Funding Accountability for Sexual Harassers Act. The bill would require all such substantiated findings to be reported to every federal agency that has awarded the institution competitive research and development grants in the past 10 years. It is the “B” subsection that might raise serious issues for academics and civil libertarians:
(A) With respect to any individual whom, as a result of a grievance procedure described in section 106.8(b) of title 34, Code of Federal Regulations (or successor regulations) carried out by the institution, is found by the institution to have engaged in discrimination on the basis of sex while the individual was a principal investigator at the institution, the institution will report (not later than 1 month after such finding) to each Federal department and agency that has awarded such institution a competitive research and development grant on or after the date that is 10 years before such finding, the following information:
(i) The name of the individual.
(ii) The date and nature of the violation for which such determination was made.
(iii) The findings of such determination.
(iv) The remedy (such as corrective training or suspension) required by the institution after such determination.
(B) With respect to a formal complaint alleging discrimination on the basis of sex by a principal investigator at the institution, which was filed with such institution, but for which the institution has not carried out a grievance procedure described in section 106.8(b) of title 34, Code of Federal Regulations (or successor regulations) 6 months after the date on which such complaint was filed, the institution will report (not later than the date that is 7 months after the date on which such complaint was filed) to each Federal department and agency that has awarded such institution a competitive research and development grant on or after the date that is 10 years before such complaint was filed, the following information:
(i) The current status of the complaint.
(ii) The nature of the complaint.
(iii) The date of the alleged violation.
(iv) The reason why the institution has yet to complete the grievance procedure.
This would mean that an allegation alone would result in a record that (while omitting the academic’s name) would include his or her department and other details. (The law is less likely to impact moves to foreign institutions).
Supporters say that such a law is needed to address academics who move to other schools to avoid final rulings or findings.
That is the allegation facing Professor Chen Xiaowu, whose case is being cited as the clearest example of China’s fledgling #MeToo movement. Chen was confronted by past students alleging sexual harassment. Such allegations are common in China and, just a short time ago, an allegations against someone like Chen (who holds the post as vice president of the Beijing university’s graduate school) would have been unthinkable. However, the controversy went online and five former students went public with their allegations.
Notably, the campaign began with Luo Xixi, who was living abroad.
Chen was ultimately stripped of his post and teaching certificate.
This month, women at the School of Law at the Shanghai University of Finance and Economics (SHUFE) started their own campaign against “Professor Mi Luo” That is the Chinese name for Professor Larry Mitchell. Mitchell was the dean of Case Western Reserve University Law School before he was accused of sexual harassment. The resulting scandal led to settlements with all parties by the university and Mitchell resigned his short-lived deanship and left for New York. He eventually changed his name to Ezra Wasserman Mitchell. Given the settlements, there was no ruling against Mitchell by the university or the federal court. Mitchell always maintained his innocence.
Like these other academics, Mitchell was highly accomplished and respected in his field of corporate law. Mitchell eventually took the position in Shanghai but he is now the focus of a #MeToo campaign including this flyer. I am told that it reads: “We request a conscientious reply from Vice President [of the University] Chen Xinyuan: Why did Shanghai University of Finance and Economics take in the sexual assault suspect, American professor Lawrence Mitchell (Mi Luo [his Chinese name]), who changed his given name but not his surname?” [Picture of Chen Xinyuan]
The controversy was raised after students found a Scene feature story. The students are protesting that “We believe that there should be no room for Lawrence Mitchell to secure any faculty position,” the student wrote in an email, “as he is extremely dangerous to female students.”
The Mitchell controversy, however, raises the question over the fairness of the new legislation if allegations were not ultimately adjudicated. Mitchell was never found guilty of the allegations. Moreover, he insisted that he changed his name to sound more Jewish, including the adoption of Wasserman (which is not a family name). While some questioned the motivation, Mitchell insisted in a posting that it was done not for nefarious but for cultural reasons.
After almost two decades of indecision, I today emerged from the New York City Civil Courthouse as Ezra Wasserman Mitchell . . .
[M]y Hebrew name — Eliezer Ezra ben Shlomo (or really the Yiddish-Hebrew Lazar Ezra ben Shlomo ) — does mean something to me. Of Ezra Ha’Sofer — the prophet who returned the people to Jerusalem and the Torah to the people following the Babylonian exile — it is said that if Moses had not received the Torah from Ha’Shem, Ezra would have been qualified to have done so. … Ezra, to me, is softly melodic, while at the same time quite strong. …
I have included Wasserman as part of my name. (וואסערמאנ in Yiddish.) Whence the Wasserman? Here I present myself as a Jewish Kunte Kinte.
Such allegations are routinely addressed by faculty members as part of the appointments process. This is generally done informally. The question is how much a new school must re-litigate such issues. They are not in a position to call witnesses, particularly with regard to events that occurred years before.
These controversies raise a debate raging this week in Washington after President Donald Trump criticized the lack of due process for his staffers accused of spousal abuse.
The issue of due process in politics ultimately depends on whether you are speaking legally or colloquially. Even legally, the term has different meanings. Magna Carta defined it as being tried by peers “by the law of the land.” However, England has always had a very different take on the meaning and does not recognize elements of due process that we have. In the United States, due process can mean substantive or procedural due process. Both turn on the meaning of constitutional guarantee of not being “deprived of life, liberty, or property, without due process of law.”
The President was clearly speaking colloquially about due process. He was right to the extent that he was reminding people that an accusation is not itself proof. Too often people assume that an allegation must be true if it is in the media. However, there does not mean that we do not weigh the proof and reach initial conclusions, particularly when the allegations deal with public figures like Roy Moore or Rod Porter. The president’s reference to Porter’s own rights and claim of innocence would be unassailable if he also expressed his concern about the women and underlying alleged conduct. Fairness does not mean that the public cannot reach initial judgments on the available evidence. What is striking is how little Porter has offered to rebut these factual assertions. Thus far, two credible women have given detailed accounts that describe a similar pattern of conduct. Porter has offered little beyond a blanket denial.
Roy Moore is the ultimate example of the use of “due process” as a way of avoiding a question of serious misconduct. Moore and his supporters repeatedly argued that it was unfair to reach conclusions since he has never been charged or “had his day in court.” That is a reference to legal due process. While it is good to remind people that an accusation is not proof, that does not mean that the public is not supposed to reach conclusions on the strengthen of the available evidence.
Due process does not mean immunity from public judgment or scrutiny. If you witness someone burning down a building, you are not required to withhold your judgment on their conduct pending trial. In the court of public opinion, we can and should reach reasoned conclusions while not accepting either accusations or denials on face value.
That brings us back to such allegations in the academic setting. Professor and students are entitled to legal due process and universities have a poor record in protecting such rights. That does not mean that students are not right to raise credible allegations from other schools or prior years. The federal legislation is based on the best of motivations and does address a concern of academics moving around to avoid final adjudications. The language and scope of such laws however have to be carefully scrutinized. An allegation is not proof and an academic may feel that his or her position is simply untenable at a school as a reason for leaving.
Do you think federal legislation is warranted and if so is the language above appropriate to achieve that purpose?