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CONCLUSION
DRAWN FOR UNIVERSITY GOVERNANCE
From the University of Waterloo's 16-year experience with its Ethics
Committee, I draw a simple, practical lesson for colleges and universities
everywhere: do not establish any such tribunal, and abolish any that currently
exist.
Two bodies of evidence support this conclusion. First is the history
chronicled above, a history of enormous investment of administrators',
professors', staff members' and students' time and talent in writing policies
and procedures for the Ethics Committee, in hearing and deciding cases,
and in defending tribunal decisions against critics. In the end, the Ethics
Committee's two most celebrated achievements—censoring the internet
and punishing a sociology professor—were judged to have been mistakes.
The one other tribunal decision that was publicly disputed failed to survive
a challenge in court. The history of the UW Ethics Committee, so far as
is publicly known, is a history of misjudgment and waste. Any wise judgments
the committee's tribunals may have made are not publicly known (I will
of course include links to documents about such cases if anyone points
them out to me.)
The other evidence supporting the conclusion drawn above is what has
happened at Waterloo since 1998, when the Ethics Committee was abolished.
By the time of this writing (mid-2003), five years have passed. The absence
of a campus tribunal for adjudicating allegations of ethical misconduct
has had no discernible ill effects. So far as one can tell from press
reports and campus scuttlebutt, the university's deans, department chairs,
and other administrators have done just as good a job, probably a better
job, of resolving complaints of ethical misconduct as they did when a
tribunal was available to receive and handle such complaints.
The failure of the UW Ethics Committee should not be attributed to its
members or to the administrators who appointed them. They should not be
considered more "morally impaired"—to use Jack Edmonds's
pungent term—than the rest of us. The problem
was not that the individuals appointed to the Ethics Committee were less
"sensible and sensitive"
than the McDonald Committee called for in 1982. The problem is that a
campus ethics tribunal, as a quasi-court, invites chutzpah and the authoritarian
exercise of power. It is a structure that too easily lets moral impairments
surface. The tribunal member gets to play at being judge, but the accused
lacks the basic protections, like presumption of innocence, provided in
criminal courts (where misjudgment is common enough even so). Sooner or
later, as occurred at Waterloo, a campus ethics tribunal becomes a censor,
an inquisition, a kangaroo court. The way to avert this probability is
to do without the tribunal, as Waterloo has done successfully for the
past five years.
The same conclusion is recommended by other universities' experience
with similar tribunals. To anyone with serious doubts about the conclusion
drawn above from Waterloo's experience, I recommend
- David Finley's The
Trial of Liam Donnelly: Conviction by Prejudice, which dissects
the tribunal at Simon Fraser University that almost wrecked the swim
coach's career, and that brought a premature end to the presidency of
John Stubbs;
- The entirety, but especially the first chapter of Alan C. Kors and
Harvey Silverglate's The Shadow University, which describes tribunal foolishness at the University
of Pennsylvania that led to the creation of FIRE,
the Foundation for Individual Rights in Education;
- The file at
FIRE on the persecution of a brave and brilliant student, Carlos
Martinez, by the Judicial Affairs Office of the University of Colorado
and by its tribunal (search the FIRE site for similar cases at other
American universities);
- John Fekete's analysis of tribunals at Dalhousie and other Canadian
universities in Moral Panic: Biopolitics Rising (Montreal:
Robert Davies, 1994);
- A carefully reasoned book by Jonathan Rauch (a columnist for the National
Journal), Kindly Inquisitors: the New Attacks on Free Thought
(Chicago: University of Chicago Press, 1993);
- My 2001
essay on two great novels, Francine Prose's Blue Angel
(2000) and Philip Roth's Human Stain (2000), in both of which
campus tribunals play a part—or better yet, the novels themselves;
- A splendid
novel published in 2002, Never Fade Away by William Hart,
in which a campus tribunal plays a central role;
- Helen Garner's nonfiction book on a case of alleged sexual harassment
at the University of Melbourne, The First Stone (Sydney: Pan
Macmillan, 1995);
- Brian Martin's "Advice
for Dissident Scholars" and other of his writings on suppression
of dissent;
- And perhaps most important, the history of the Star
Chamber in England in the 16th and early 17th centuries, to which
campus tribunals have often been likened.
It may be objected that Waterloo's Ethics Committee and most of the tribunals
in the sources listed above fell prey to serious misjudgment only under
the influence of the late-twentieth-century moral panic over sexual harassment
and related ills, that the important problem was the panic, not the tribunals
that got caught up in it. There is truth in this argument. At Waterloo,
the Ethics Committee had little if any part in the most egregious cases
of false accusation and wrongful punishment during the 1990s. There is
ample evidence in this university as in others that under the influence
of the passions of the day, administrators can make horribly wrong decisions
without the assistance of campus tribunals.
My contention here is that, nomatter what panic is raging at a given
time and place, campus ethics tribunals increase rather than diminish
the likelihood of horribly wrong decisions in universities. If a professor
or student appears to have committed an offense against the criminal code,
the place to turn to is the police and public prosecutor, and if the individual
is charged, the case should be heard in a public court, with all the procedural
safeguards of criminal law. Run-of-the-mill complaints of offensiveness
or ethical misconduct should be handled creatively, constructively, and
dialogically by line administrators—who are then held accountable
for their decisions to the faculty and to the governing board.
Administrative and collegial resolution of disputes as suggested here,
the actual practice at Waterloo these past five years, takes time, intense
effort, and skill, and it does not guarantee a fair outcome. But the odds
of a fair outcome are higher than from adversarial proceedings of almost
any kind (see my article, "Arbitration,
Litigation, and Snowball Fights," in FAUW Forum. March
2001, p. 9). Any court or quasi-court, I conclude, should be the very
last resort.
A quote from Nietzsche is an apt conclusion to this documentary history:
"Distrust all those in whom the impulse to punish is powerful." |
