As a nonprofit registered charitable society that works to promote and protect civil liberties of British Columbians, the BCCLA values freedom of expression and thought, due process, fairness, privacy, citizen access to information about public bodies and democratic accountability. In addition, the Association has a long history of working to eliminate unfair discrimination.
Over the past decade, many post-secondary education institutions have created policies and procedures that seek to sanction objectionable conduct that is considered to constitute “harassment”. Complaints of harassment and campus harassment policies engage these classic civil libertarian values and have significant implications for the individuals who are parties to a harassment complaint. Thus, we have taken a keen interest in the development and application of harassment policies on campuses throughout British Columbia.
The Association has previously published a position paper on campus speech codes (The Democratic Commitment 24:2, October 1995). The principles enunciated there form the basis for many of the substantive comments in Part A of this paper. Part B focuses on procedural issues that arise in dealing with harassment complaints. Parts A and B discuss general principles that should guide any harassment policy. Parts A and B also give specific comments on the draft revised Simon Fraser University (SFU) Harassment Policy.
A. Substantive aspects of campus harassment policies and the SFU Draft Code—What constitutes “harassment” in an academic setting?
I. General principles
It should be acknowledged that a test which captures behavior that is genuinely harassing while excluding non-harassing behaviour is difficult to formulate. On account of this difficulty some attempt must be made to offer standards for interpreting a harassment policy. Two such standards, previously articulated by the BCCLA (see “Campus Speech Codes”, above) include:
There is an important difference between offending persons and harassing them.
Giving offense to a member of the university community is never by itself sufficient grounds to constitute harassment.
It is neither possible nor desirable to ensure that persons are protected from offense in institutions of higher learning. Transforming universities into “offensiveness free-zones” would undermine both their pedagogic and research missions. A basic aim of any test for harassment, then, should be to ensure that merely injuring a person’s sensitivities or upsetting them does not constitute harassment.
A congenial test holds that:
(1) Harassing behavior must single out a person or group sufficiently to make that person or group identifiable as the target of harassment.
(2) Harassing behavior must treat those persons in a manner which would cause a reasonable member of the university community to be unable to participate in the academic environment as an equal.
Both of these conditions must be satisfied for behavior to be considered harassment. The rationale for (1) is that it is difficult to imagine cases where a person could be severely discriminated against, in their educational opportunities for example, where they had not been singled out in some invidious fashion. Encountering a discussion of unpleasant ideas should not form the basis for a harassment proceeding. The idea that harassing behavior must do more than offend is taken up in (2), the “participation as an equal” clause. Finally, it should be specified that a reasonable member of the university community, as referred to in (2), endorses the principle of academic freedom as a sovereign value within the university.
A basic principle of academic freedom holds the following:
(3) Barring some gross breach of ethics, there is a personal liberty enjoyed by faculty and students to pursue the investigation, research, teaching and discussion of any subject matter of professional, or scholastic interest.
Many harassment policies stipulate that interpretation should rely on a “reasonable person” standard. These provisions, while welcome, do not fully alleviate legitimate concerns. A “reasonable person” standard helps ensure that highly idiosyncratic, personal reactions are not allowed to determine when harassment has occurred. But a “reasonable person” standard is not a panacea. It remains a very vague notion. There is no substitute for making explicit in the policy’s interpretive guidelines that offense does not constitute harassment in and of itself, and that academic freedom is a sovereign value in the university.
The above test for harassment would be unlikely to treat as harassment certain quid pro quo offers: for example, an offer to raise a student’s grade for sex. This is because an offer to raise a student’s grade does not normally pose obstacles to that particular student’s participation in the university. It does, however, disadvantage other students. It is important to emphasize, therefore, that a harassment policy should be accompanied by a Code of Faculty Responsibilities and Ethics. An instructor who made such an offer would normally be in contravention of this Code. An instructor who, by contrast, threatened to lower a student’s grade if the student did not comply with a demand for sex would likely be guilty under the harassment policy, and would also be in separate breach of their professional responsibilities.
Substantive issues arising from the draft revised SFU Harassment Policy
The proposed revisions to the Simon Fraser University Harassment Policy represent a substantial improvement over the existing policy. The SFU drafting committee should be commended for the comprehensiveness of its review. In 1994, the British Columbia Civil Liberties Association submitted written comments of the policy. These further comments are intended as friendly additions to the necessary review process which the committee has undertaken.
Generally, two distinct substantive worries arise from the draft revised SFU Harassment Policy:
1. Academic Freedom
The policy restricts expression within the university in a manner that is inconsistent with the principle of academic freedom. This principle should be interpreted broadly as applying to both faculty and students.
2. Social fabric
The policy treats as actionable behaviors which form part of the normal social fabric of the university, as well as the community at large. Since the policy also regulates relations between students, students should be alerted to the fact that their ordinary interaction on campus will be affected by the policy in very significant ways.
The BCCLA provides the following detailed recommendations and comments, which follow the format of the draft revised SFU Harassment Policy.
1. The BCCLA recommends that the draft revised SFU Harassment Policy be amended to better protect academic freedom by including the right to publish research, and by dropping the term “mutual respect” from the provisions regarding guidelines.
In its interpretive guidelines (Article 1.0), the SFU policy mentions the importance of academic freedom, but in a way which unduly qualifies and blunts the importance of this value. The definition offered for academic freedom at Article 1.0 omits reference to the liberty to publish controversial ideas. The right to publish research ought to be included in the commitment to academic freedom.
Liberties covered under academic freedom are limited by the requirement “that these activities are conducted in a mutually respectful… manner.” This concept of “mutual respect” remains vague since it is not defined in the policy. On the common and ordinary understanding of this concept, many activities which constitute quintessential instances of the exercise of academic freedom are in fact not mutually respectful. For example, the advocacy of Maoist communism or some other totalitarian system would normally be protected under the doctrine of academic freedom. But someone who advances these proposals—who overlooks the horrible cost in human suffering associated with these totalitarian regimes—must anticipate being replied to in terms which may fail to token respect.
More generally, two professors or two students engaged in a heated exchange might legitimately call one another “immoral,” “incompetent,” “an ass,” or “a charlatan” That is part and parcel of taking ideas seriously. The possibility for disagreement—even sharp disagreement—must be preserved in the university. Members of that community cannot have the threat of a harassment proceeding hanging over their heads on those occasions when they wish to denounce what they regard as a badly misguided point of view. While such exchanges might well prove offensive, they would not normally constitute harassment.
Accordingly, we suggest the term “mutual respect” be dropped from the Guideline provisions because: (a) it constitutes an unwanted limitation on the doctrine of academic freedom, and (b) it is equally poorly suited for expressing the legitimate concerns of a harassment policy.
2. The BCCLA recommends that the draft SFU policy be amended so that the definition of harassment does not proscribe offensive content or viewpoints. Further, the definition of harassment should require that the person or group subject to harassment be unable to participate as equals in the academic environment.
Harassment is defined in the policy as follows:
Harassment is hostile or threatening behavior which is inappropriate and unwanted and which would be considered by a reasonable person to create a negative environment for work, study, and other university-related activities.
We suggest that the portion of this test which refers to “a negative environment for work” is inadequate, since the term “negative environment” is not defined in the policy. Its interpretation will therefore be determined by context, and the context in which the term occurs suggests strongly that it will be interpreted to include the creation of a merely offensive environment.
One relevant context for interpretation is provided by section Article 4.0(f), which states that harassment can include “the use of pornography, racist/sexist graffiti, or posters unrelated to any academic purpose.” This illustration combines both content and viewpoint based restrictions. While the restriction of pornography is content based (it does not necessarily matter whether the material condones or is critical of pornography), the prohibition on racist or sexist speech is a viewpoint based restriction. It is the condoning attitude contained in the materials which furnishes the basis for the proscription.
In the view of the BCCLA, disagreeable contents and viewpoints should not constitute harassment.
Speech should never be regarded as harassment simply on the basis of the viewpoint or the content which it expresses—however offensive that speech may be. It must also be shown that the expression in question does more than simply offend. Putting this point another way, the fact that expressive activity contains distasteful content or a distasteful viewpoint is never by itself sufficient to show that the expression constitutes harassment.
Article 4.0(f)’s use of the words “unrelated to any academic purpose” raises interpretive problems of its own (see next objection below). But even speech unrelated to an academic purpose may not constitute harassment, despite disagreeable content or viewpoint.
For example, suppose that an instructor or student is discovered hanging a racist or sexist poster on a public university bulletin board or alternatively, reading pornography in the cafeteria during a lunch break. The activity in question has no apparent academic value. Yet (barring special circumstances) this would not constitute harassment. In order for the expression to constitute harassment, there must be some further finding that these activities seriously impede the ability of persons to participate in the university community as equals. This burden is simply not met when, for example, a student encounters a distasteful poster on a bulletin board in a public thoroughfare, or a professor reading Hustler over lunch. Adding the expression “unrelated to an academic purpose” does not significantly address the serious reservations attending content and viewpoint based restrictions.
Expression that is harassment may or may not contain a disagreeable content or viewpoint. But something more than a finding of a sexist, racist or pornographic content is needed for expression to be harassment. It must be made unequivocally clear in the policy that the offensive character of sexist or racist or pornographic expression do not suffice to certify that expression as harassment.
3. The BCCLA recommends that the draft SFU policy be amended by eliminating Article 4.0(f)
Article 4.0(f) states: “[H]arassment can include but is not limited to such behaviours as… (f) the use of pornography, racist/sexist graffiti, or posters unrelated to any academic purpose.”
Significant problems arise from interpreting “academic purpose” in light of the compromised standard for academic freedom. Faculty are advised (in an accompanying letter by the draft policy’s framer) that faculty will have the right to display pornography in classrooms. The framers’s presumption seems to be that such displays fall safely under the “academic purpose” proviso (Article 4.0(f)). But the basis for this presumption remain unclear.
The basic question is, how will the phrase “unrelated to any academic purpose” be interpreted? More specifically, will it be interpreted in a narrow or generous fashion? Contextual factors suggest a narrow reading of what constitutes an academic purpose. First, the principle of academic freedom has already been diluted by the provision that the expressive activities protected under that principle must be “mutually respectful” (Article 1.0). Second, content and viewpoint based restrictions are provided for in the policy’s illustrations. (See the policy’s Article 4.1(d).)
Suppose, then, that in the course of answering a pointed question, a professor adopts a tone that fails to token respect, and furthermore relies on pornography or some racist or sexist text to illustrate the point. Some might well consider the use of these materials gratuitous in that particular context. But unless there are very special complications, this expression should be protected under the principle of academic freedom. It needs to be emphasized that whether it would be protected under the draft policy is very unclear. Moreover, the intentions of the policy’s framers will have little probative value once the draft is adopted.
The BCCLA is very concerned that the draft policy creates a double standard for students.
Even if it were given a generously broad interpretation, the “academic purpose” proviso will leave many basic forms of expression unprotected. One important consequence is that a significant double standard will be created where the rights of faculty and students are concerned.
Not all important speech at universities takes place in formal classroom settings. Students in particular may have to rely on nontraditional forums—including the student pub, the cafeterias, posters, Internet postings, and the like—in order to get their points of view across. There is simply no reason given in the policy for supposing that this speech will be deemed related to an “academic purpose”. Indeed, as Article 4.0(f) currently reads, it would suggest that if two students are discussing the issue of pornography or its difference from art in the university pub, and one student unravels a centerfold from among papers, for purposes of illustration, that student may be guilty of harassment. Yet it is certainly part of a student’s education—perhaps the most vital part—that they be permitted to express and exchange controversial ideas in informal settings.
Students seem especially vulnerable in this respect. There is often no clear line between academic inquiry and socializing in many student activities. The policy states explicitly that “harassment may occur between people of the same or different status within the university community” (at Article 4.2). As there need be no imbalance of power involved, the policy applies with equal force to students, and thus poses a significant threat to these activities.
In addition, the draft policy’s definitions are too vague. Grounds presented for limiting speech in Articles 4.0 and 4.0(f) are extremely imprecise. There are no definitions or useful guidelines for the interpretation of critical terms, such as “pornography,” “racist” or “sexist,” or “academic purpose.” Consequently, the standard is potentially subject to enormous abuses of interpretation.
The special problem of vague definitions
It is a general precept of liberty of expression jurisprudence that vagueness is a grounds for eliminating a restriction on expression. Vague rules have the effect of chilling more speech than they may appear to. Individuals with no idea about how the vague provisions might be interpreted are most likely to err on the side of caution. An inevitable consequence is that speech will be subject to far greater self-censorship than may seem apparent from a simple reading of the rule.
Freedom from censorship is of the utmost importance in a university environment. The prospect of this chill penetrating informal gatherings as well as the classroom is cause for concern.
In sum, considerations of vagueness, reservations about the artificiality of a distinction within the university between speech with an “academic purpose” and speech that lacks it, and the inappropriateness of content and viewpoint based restrictions all suggest the need for revisions to article 4.
4. The BCCLA recommends that the definition of “sexual harassment” be substantially revised to accord with the general principles outlined in Part A, section I.
Article 4.1 states that:
“Sexual harassment is defined as unwanted sexual attention, sexual solicitation, or other sexually oriented remarks or behaviours, made by a person who knows or ought reasonably to know that such attention or solicitation is unwanted.”
There are two significant problems with the draft policy’s definition of “sexual harassment.” First, the definition is so overly broad that it will have a significant and detrimental impact on normal social relationships. Second, this definition will again have a significantly negative effect on academic freedom. We consider both these concerns in turn.
(a) The negative impact of over broad and over inclusive definitions
One problem with an overly broad definition of the sort given under the policy is that it transforms behaviours which form a normal part of the social fabric of the university into serious offenses which potentially carry serious penalties and stigma.
Suppose a student or faculty member asks some other student or faculty member for a date. Suppose further that the individual making the offer knows that the offer’s recipient currently has a partner. As it happens, the sexual attention is unwanted. We may judge further that it would be reasonable for the person making the offer to realize that the attention is unwanted. Someone who makes such an offer may be unsavory. But barring additional complications—for example, egregious persistence, or a threat to abuse power—it is clear that this does not in itself constitute sexual harassment. Yet this behaviour would satisfy the test created by the policy’s definition in Article 4.1.
Consequently, the policy risks undermining the formation of the close personal relationships which form an important part of the university experience. Again, students seem especially vulnerable in this respect, for it is natural to suppose that the university environment will remain a focal point for much of a student’s social life. Under its present wording, the test for sexual harassment conflicts with social behaviour that is both widespread and not normally regarded as an actionable offense.
It is equally clear that no university tribunal could enforce what the policy’s test regards as sexual harassment. Such enforcement would either overtax the university’s resources, or lead to a general student rebellion, or both.
It is a well-established precept of jurisprudence that laws restricting widespread activities, and which can only be enforced in a piecemeal fashion, may be struck down. The rationale for this precept is straightforward. If most members of a community engage in the proscribed behaviours, then what limited enforcement there may be will necessarily be discriminatory. The law risks being used against those who have made enemies or have left favors unreturned, or as a general tool for intimidation. It is unfair that students in particular—for whom the university doubles as an important forum for socializing—should have this threat hanging over their heads.
(b) The negative impact on academic freedom
In our view, the definition of sexual harassment provides even less protection for expression and academic freedom than the test for harassment. This definition is problematic because it relies on a purely subjective standard, with no requirement that the behaviour single out a person or a group, and it creates specific content and viewpoint restrictions.
The definition for sexual harassment drops the objective requirements found in the definition for harassment. Article 4.0 stipulates that the activity must “be considered by a reasonable person to create a negative environment”. It states further that the behaviour must be inappropriate and hostile or threatening. There is potentially some fact of the matter regarding whether behaviour is inappropriate or threatening. There is equally some potential fact of the matter regarding whether a reasonable person would find the environment negative. (To reiterate, a negative environment test is nonetheless inappropriate.)
In place of this objective standard, Article 4.1 substitutes a purely subjective test: whether “sexual attention, sexual solicitation, or other sexually oriented remarks or behaviours” are unwanted.
In at least two ways this test is purely subjective. First, the idea of a “sexually oriented remark” has no stable referent in the way that threatening or hostile behaviour does. The concept of a “sexually oriented remark” is vaporous. Second, the test in Article 4.1 eliminates the reasonable person requirement that is found in Article 4.0. No rationale is given for this asymmetry, which makes the test in Article 4.1 inconsistent with the principle articulated in Article 1.3, since that interpretive provision holds that a reasonable person standard will be used to determine whether harassment has occurred. (The objective component of Article 4.1 imposes a reasonable person standard on the harasser. While this has the function of eliminating the requirement for intent, this is not necessarily objectionable.)
Article 4.0 requires harassing behaviour to be hostile or threatening. This may imply that the behaviour would be directed to an identifiable group or individual, or single them out in some way. (An explicit provision of the kind given in I.3.1 above would be preferable.) By contrast, holding that “sexually oriented remarks or behaviours” are harassment if they are known to be unwanted eliminates the requirement that the target be in some sense singled out. Sexually oriented remarks and behaviours need not be directed at anybody or single them out.
Such a definition embraces much expression normally protected under the principle of academic freedom. For example, discussion of much fine art and literature often occasions “sexually oriented remarks”. These remarks might be uttered in a classroom setting or simply be overheard in a hallway, or the cafeteria. Displaying a Mapplethorpe print on an office wall or in a lecture may constitute sexual behavior: as may casual discussion of a work of art. The venue is immaterial from the standpoint of the policy’s test. A reasonable person may also safely presume that at least some students will find contact with these remarks and behaviours unwanted. But that is all that is required for a finding of sexual harassment in these cases. The remarks or behaviours need not be directed in any way towards a student; nor must the complainant be reasonable in claiming that the exposure is unwanted.
Appeal to the policy’s interpretive guidelines, and its academic freedom provision in particular, will not alleviate the problem. Not all discussion of art and literature is carried out in duly respectful tones. This suggests once again that, contrary to the stated intentions of the framers, the policy may bar the use or mention of pornographic materials in the classroom.
But even if the academic freedom provision were suitably repaired, this definition for sexual harassment would remain inadequate. It has the potential to chill much speech and behaviour outside of a narrow academic context. Students seem especially vulnerable in this respect since, to reiterate, there is often no clear line between academic inquiry and socializing in many student activities. Socializing is a vital part of student education, yet normal socializing will be hazardous given this exceedingly vague test for sexual harassment.
Finally, the definition for sexual harassment creates inappropriate content and viewpoint restrictions. Article 4.1(d) includes as examples of sexual harassment “suggestive or demeaning remarks, jokes or other types of verbal abuse of a sexual or sexist nature directed at an individual or group.” Reference to expressions of a “sexist nature” raises the difficulties with content and viewpoint-based restrictions that were discussed above. Neither the content or the viewpoint of speech is sufficient to show that the expression constitutes harassment. That the speech be “unwanted” (as required in Article 4.1) scarcely improves matters.
Problems with Article 4.1(d) are further compounded by the dropping of the “academic purpose” provision mentioned in Article 4.0(f ) of the policy. This makes it difficult to reconcile Article 4.1(d) and 4.0(f). The sense of Article 4.1(d) is that even if a sexist statement is centrally connected to an “academic purpose,” this provides no protection whatsoever for that expression, while Article 4.0(f) does give protection to speech related to an “academic purpose.” No attempt is made to explain why sexist speech does not give rise to a charge of ordinary harassment when it is related to an “academic purpose,” but may nonetheless give rise to charge of sexual harassment. This significantly waters down the principle of academic freedom. Instructors receive some protection from content and viewpoint-based restriction where simple “harassment” is concerned. But they remain exposed to charges of “sexual harassment” even when their expression is connected to a legitimate “academic purpose.”
In sum, the difficulties with Article 4.1 are significant. The test for sexual harassment encroaches significantly on the principle of academic freedom, and equally upon the normal social fabric of the university. Any serious attempt to enforce these measures has the potential for wreaking havoc. That these provisions could not be enforced in a general fashion should give no cause for reassurance, since it suggests that these provisions will be inevitably applied in a piecemeal and discriminatory manner.
III. Concluding remarks
A natural reaction to the criticisms raised here, along with the examples used to illustrate them, is that no reasonable adjudicator would ever interpret a harassment policy in this uncharitable and vindictive fashion. Yet while this reaction is natural, it also overlooks much that is worth reflecting on. First, it should be remembered that the penalties and stigma to which a determination of guilt under this policy gives rise are potentially very stiff. They may be no less onerous than the penalties imposed by the state in a criminal proceeding. In fact, they may often be more considerable: the respect of colleagues, friends, and students are factored into the balance. When rules governing penalties of this magnitude are drawn up, enormous care must be taken. A person who is subject to these rules should not be asked to put his or her trust in the charity or evenhandedness of the trier of fact. Some adjudicators will indeed be wise and judicious. But others will not. Confronted with penalties of this importance no person’s fate should be made to depend upon the vagaries of an adjudicator’s disposition: whether they are racist or vengeful, inept, or simply dislike the look on someone’s face.
Second, it must not be forgotten that vague or poorly drafted rules end up regulating far more behaviour than is apparent on their face. When penalties are stiff, people must err on the side of caution. The censorship and restrictions which anxious persons impose upon themselves are inevitably more profound and far-reaching than what may be inferred from the vaguely drawn rules.
There are certainly occasions where verbal abuse and physical trespass constitute harassment and sexual harassment. No university should allow such behaviour. But any reasonable person who has reflected on these issues will comprehend the difficulties involved in formulating tests or definitions which select harassing behaviours while excluding the rest. It is possible that no test could always yield verdicts with which we are comfortable. This difficulty can be somewhat alleviated by including clear guidelines for the interpretation of a policy’s provisions. The general principles, which form the underlying basis for the policy, must accordingly be made explicit. Basic principles, such as a commitment to the elimination of genuine harassment, the protection of (genuine) academic freedom, and the difference between harassment and mere offense, should be included as a guide for the community, the policy’s initial interpreters, and as a basis for appeal.
Yet even the inclusion of these interpretive guidelines is likely to be inadequate to ensure that all genuine harassment is proscribed and all innocent behaviour is not. Confronted with this sad fact, the framers of the draft revision have settled on definitions and illustrations which err significantly on the side of over-regulation. More appropriate standards would err—if they must err at all—on the opposite side. They would not seek to protect all persons from the risk of suffering even mild forms of harassment at the cost of transforming ordinary features of the university’s social life into offenses. Nor would they imperil the principles of academic freedom and liberty of discussion which are vital to the university. It is better that some be offended—and regrettably perhaps even more than offended—than that the mission of the university be compromised. The risk that a few rogues will evade justice is a cost that the members of free societies have traditionally borne in exchange for the preservation of their liberties.
Part B: Procedural aspects of campus harassment policies And The SFU Draft Code
Part B is prepared for two purposes: as a statement of the BCCLA’s position on the general procedural provisions of campus harassment codes, and as specific comments on the procedural aspects of the draft revised policy at Simon Fraser University.
I. General Principles
The following principles should guide procedural aspects of any campus harassment policy.
(1) Professional adjudicators, rather than peer adjudicators, should be responsible for adjudicating complaints about harassment.
Where a harassment code creates a quasi-judicial process for adjudicators to make factual and “legal” determinations (i.e. whether particular conduct constitutes “harassment” as defined in the policy), persons with considerable legal training and experience in administrative law/arbitration should be chosen as adjudicators rather than using peers. Professional arbitrators/adjudicators have the knowledge and experience to best ensure fairness and due process for the parties while making sound factual and legal determinations. (We use the terms “adjudicator” and “arbitrator” interchangably throughout Part B.) Use of lawyers may also help to instill public confidence in the process.
(2) Current principles of administrative law should be applied by adjudicators.
Given a climate where some portion of the public has lost confidence in the fairness and balance of an harassment process, it may be tempting to create procedural standards that seek to make it easier to defend oneself against allegations of harassment. This approach is neither wise nor necessary. First, properly understood (see our comments in Part A above on appropriate definition), harassment is serious misconduct that cannot be tolerated. Harassment policies should not be devised to complicate proving a case of harassment. This would defeat the fundamental purpose of such policies. Traditional standards of administrative law should be applied in harassment proceedings. For example, the BCCLA supports the principle that the standard of proof should be a civil standard consistent with the gravity of the allegation. All other administrative law principles, including admissibility of evidence and standards of fairness and due process, should be applicable to campus harassment proceedings. Professional expertise and experience will help to ensure fair and balanced proceedings.
(3) In order to promote both privacy and accountability, detailed decisions of harassment adjudicators should be routinely made available to the public consistent with the principles of the Freedom of Information and Protection of Privacy Act.
Harassment proceedings involve two important and conflicting civil libertarian values: privacy (of the parties to a complaint) and accountability (the right of the public to assess the fairness and appropriateness of the process). Privacy and confidentiality are necessary to ensure that victims of harassment feel free to come forward with complaints. Given the ramifications of allegations of harassment in today’s world, confidentiality also helps to protect the reputations of all parties in a proceeding. Yet accountability is equally important: both the parties to a complaint and the general public have a right to know that justice is not only done, but seen to be done. Public confidence in the process is possible only if the public is able to scrutinize the decision making of adjudicators.
In British Columbia, universities and colleges are subject to the Freedom of Information and Protection of Privacy Act. This Act seeks to balance both privacy and accountability through access to information held by public bodies. While the public need not know the identities of parties to a harassment complaint, they should be able to assess the findings and reasoning of adjudicators. Thus, detailed decisions regarding harassment complaints should be routinely made available to the public. The BCCLA is hopeful that the Freedom of Information and Protection of Privacy Act will provide an adequate balance between the need for privacy and accountability. As jurisprudence regarding access requests involving campus harassment decisions grows, the BCCLA will continue to assess the Act’s ability to balance these values appropriately.
(4) The BCCLA recommends that harassment hearings be customarily open to the public unless a party can demonstrate that irreparable harm would be caused by an open hearing. If an adjudicator decides to hold a harassment hearing in camera (not open to the public), written reasons must be provided for that decision. Such a decision should be made available to the public.
In civil justice matters, including human rights tribunal disputes, hearings are open to the public. Openness is necessary to ensure public confidence in the process of civil justice. Given the concerns about the fairness of harassment proceedings at academic institutions, there is a heightened need for openness and accountability. Therefore, harassment hearings on campus should be open to the public. If a party or parties can demonstrate that openness would result in irreparable harm, adjudicators should have the discretion to require the hearing to proceed in camera. However, an adjudicator’s decision should be made available to the public to allow assessment about the reasons for closure.
(5) Parties to a harassment complaint should have the right to be represented by legal counsel in harassment proceedings.
Allegations of harassment necessarily have serious personal ramifications for an individual’s career and personal life. In some ways, a charge of harassment may be more serious than many criminal charges. Also, given the nature of the alleged conduct, harassment proceedings tend to be highly emotional. Competent legal counsel can help to establish the facts in dispute in a relatively less emotional way than if parties represented themselves. Permitting legal counsel allows a level playing field for the parties in putting their best case forward. Otherwise, professor-respondents would most likely often have a significant advantage over most student-complainants in presenting evidence and argument. Finally, permitting legal counsel further enhances the professionalism of the process, thereby promoting fairness and due process.
(6) Harassment complaints that are frivolous, trivial, made in bad faith or are without any plausible foundation should be dismissed as early as practicable in the process.
All campus harassment processes should have provisions allowing early dismissal of complaints deemed to be frivolous, trivial, made in bad faith or without any plausible foundation. Allegations of harassment are time consuming and stressful. No individual respondent should have to endure a lengthy process, or be forced into informal resolution, if a harassment complainant is trivial, frivolous, made in bad faith or without a plausible foundation. Such assessments of complaints should be made only if the respondent objects to the complaint. Both respondents and complainants should have an opportunity to make submissions about whether the complaint should be summarily dismissed.
Two subsidiary issues arise: First, who should be responsible for making such a determination? This responsibility should rest with some person or body not previously involved in an administrative or educational capacity. For example, an anti-harassment coordinator whose primary responsibilities are educative and administrative should not also possess an adjudicative function, even if only as gatekeeper. This additional function could present problems of independence, perceived bias and/or conflict of interests. Second, there should be an appeal mechanism from initial decisions for early dismissal. Again, the person(s) appealed to should not have had any prior involvement in the complaint, nor should they be involved in further adjudication if the complaint does proceed.
II. Specific comments on the Draft Revised SFU Harassment Policy based on BCCLA’s general principles
(1) The BCCLA commends Simon Fraser University and the committee responsible for proposing revisions for their efforts to revise SFU’s Harassment Policy.
In our view, the draft revised SFU Harassment Policy makes significant improvements over the current policy. Both SFU and the drafting committee should take credit for revisiting the policy to make it as fair and equitable as possible. These comments are meant to provide constructive feedback for this committee and the university in its deliberations.
(2) The BCCLA recommends that SFU amend its Draft Revised Harassment Policy so that a harassment panel consists of a single adjudicator/arbitrator who has legal expertise and experience in adjudication.
The draft revised SFU Harassment Policy requires the SFU President to create a pool of professional arbitrators from which individuals could be selected as Chair of a Resolution Panel which would then adjudicate harassment complaints at SFU. The draft SFU Policy also would create a Policy Board of staff, students and faculty from which two members would be chosen by the Chair of the Policy Board to accompany the professional arbitrator as part of the Resolution Panel. Thus, the SFU Policy creates a mixed system of “peer” justice and “professional” justice. Given that a professional arbitrator has been chosen in large part to ensure procedural safeguards as “Chair” of the panel, this individual would likely have considerable sway on procedural matters that arise in the course of a hearing. To this extent, the SFU Policy accords to large degree with BCCLA’s preference of professional adjudicators/arbitrators. However, given that the professional adjudicator would be only one of three panel members, there is a risk of the professional being outvoted by the two peer adjudicators, which would undermine the purpose of including the professional adjudicator/ arbitrator as part of a Resolution Panel.
Some concern may arise that an adjudicator may not be familiar with the concept of “academic freedom,” suggesting that a panel including peers would be likely to better respect this value. Even under the draft policy, a Resolution Panel may often include only one faculty member at most, and thus not guarantee protection of academic freedom. Furthermore, expert evidence about the importance and meaning of academic freedom can be introduced during a hearing. Adjudicators are properly trained to assimilate such expert evidence in making their decisions. Finally, as Part A of this paper outlines, the definition of harassment must itself ensure that academic freedom is fully protected. On balance, the BCCLA judges that a harassment panel consisting of a single adjudicator/arbitrator with legal expertise and experience in adjudication will be able to protect the value of academic freedom.
Of course, the quality of decision making and adjudication will depend in large measure on the quality of candidates in the arbitrator pool created by the President. It is likely that the SFU President (given the recent controversy), like all administrators, has considerable interest in ensuring that arbitrators selected to the pool are respected for their knowledge, experience, fairness and impartiality. Public scrutiny of these choices would likely act as further significant motivation for the President to ensure selection of impartial candidates. Finally, there are financial implications in the selection of arbitrators, who as professionals are not cheap. The President, who has ultimate fiscal responsibility for the university, should have responsibility for controlling the costs of arbitration. However, it is advisable that the President consult widely with various constituents who will be subject to the policy.
(3) The BCCLA agrees with the use of the civil standard of proof in the policy. In addition, the BCCLA recommends that the policy confirm that the complainant has the burden of proof, that the university and other organizations ensure that there is a level playing field in representation of parties and that Resolution Panels follow principles of administrative law.
The draft SFU policy uses the civil standard of proof. This standard is appropriate so long as it is consistent with the gravity of the allegation. Here again, professional adjudicators understand that the more serious the allegation, the more serious the ramifications for the respondent. This requires more rigorous scrutiny of the evidence by the adjudicator.
The policy should also confirm that the complainant bears the onus of proof. This onus is consistent with the burden of proof in civil matters generally. This onus does raise questions about the complainant’s ability to present evidence and advance arguments. The BCCLA is concerned that complainants who lack the resources to retain legal counsel will be at disadvantage if the respondent retains legal counsel. This is less of a concern if the complainant is a union member, in which case the complainant likely has greater access to advocates. However, students will not likely have this access. The university and student organizations should therefore work to ensure that complainants have access to expert advocacy if required to “level the playing field.”
Finally, the SFU policy gives a Resolution Panel the discretion to set its own procedures, so long as they are consistent with principles of administrative fairness (which are partly outlined in the Guidelines of the policy). The policy should clearly indicate that adjudicators must follow current principles of administrative law, including principles of fairness as well as principles for the admissibility of evidence and other related matters.
(4) The BCCLA recommends that detailed decisions of Resolutions Panels be made routinely available to the public, consistent with privacy protections in the Freedom of Information and Protection of Privacy Act.
The draft revised policy requires that all parties to a harassment proceeding maintain absolute confidentiality of all aspects of the proceedings including the identity of the parties and other information. The policy does not prescribe whether decisions should or may be released nor does the policy outline whether hearings are open to the public. Evidently, SFU recognizes that it must abide by the provisions of the Freedom of Information and Protection of Privacy Act. In a recent controversy at SFU, it is the BCCLA’s understanding that the university refused to disclose most if not all of a decision of a panel based on its interpretations under the Act. This decision is likely to be reviewed by the Information and Privacy Commissioner.
Universities and colleges should release detailed decisions regarding harassment complaints without directly revealing the identities (personal information) of the parties. There may be cases in which there is a risk that, due to the relative size of the community and the notoriety of a particular dispute, people in the campus community might still be able to identify the parties even where the administration purges directly and indirectly identifying information. However, as long as the campus administration eliminates as much information as possible that might indirectly identify the parties without eliminating so much detail that the public is not able to adequately assess the decision-making process, this is a risk that must be taken to provide some balance between privacy and accountability.
(5) The BCCLA recommends that the draft revised SFU Harassment Policy be amended to make harassment hearings customarily open to the public unless a party can demonstrate that irreparable harm would be caused by an open hearing. If an adjudicator decides to hold a harassment hearing in camera (not open to the public), the policy should require that adjudicators provide written reasons for their decision. The university should make such a decision available to the public.
As indicated, the draft revised policy requires confidentiality. This appears to imply that Resolution Panel hearings would be closed to the public, although the policy does not make that explicit. As outlined under our General Principles, harassment hearings should be open. Though it is appropriate to require confidentiality up to the point of a hearing, including mediation, hearings should be open to the public to promote accountability.
(6) The BCCLA recommends that the draft revised SFU Harassment Policy be changed to make it clear that any party to a harassment complaint may choose to be represented by legal counsel in all aspects of the process.
The draft revised SFU Policy is at least confusing, if not contradictory, in its provision for allowing parties the right to be represented by legal counsel. In Article 1.1(d) it appears that the SFU Policy would permit parties to be represented by “legal counsel throughout the procedures described below.” However, in Article 8.7, the SFU Policy appears to only permit parties to have a “support person” present at a Resolution Panel hearing. This person “is not an active participant in the process but rather serves to provide support and counsel.” Based on the general principle of right of legal counsel as outlined above (the serious ramifications of a harassment complaint to the parties, the emotional nature of harassment disputes and the potential for parties’ relative inequality of ability to present their best case), the draft revised policy should be amended to allow any party to choose to be represented by legal counsel. Legal counsel should have the ability to act as full participants in the hearing as in any other judicial or administrative law setting. Aside from arguments based on principle, parties to an administrative proceeding are usually entitled to be represented by legal counsel as a matter of a legal right.
Following on point (3) above, the university and other relevant parties should ensure that complainants, who otherwise do not have the resources to hire legal counsel, are able to be represented by competent counsel if the respondent has legal counsel.
(7) The BCCLA recommends that the draft revised SFU policy be amended to provide for summary dismissal of complaints that are trivial, frivolous, made in bad faith or are without plausible foundation. The BCCLA further recommends that a member of the Policy Board make determinations regarding an allegation that a complaint is trivial, frivolous, made in bad faith or without plausible foundation.
Article 8.1 of the draft revised policy gives the “Policy Coordinator” authority to dismiss a request for a Resolution Panel hearing if there are reasonable grounds to believe that the request is “frivolous, vexatious or unfounded.” The BCCLA has several comments regarding this provision. First, the word “unfounded” should be changed to “without plausible foundation” and “vexatious” be changed to “made in bad faith.” A determination that a complaint is “unfounded” would require a full assessment of all relevant evidence which is beyond the scope of summary dismissals. “Without plausible foundation” requires an assessment that is much more suited to summary dismissals. The phrase “made in bad faith” is used in the B.C. Human Rights Code and better reflects current usage than “vexatious.”
Second, the wording of the provision only applies to “requests” for a hearing, not to the original complaint itself. This may simply be an oversight of the drafters, but the implication is that a respondent who believes that the complaint is trivial or was made in bad faith, etc. has no recourse other than to request a hearing. A complaint that is frivolous, etc. could not be summarily dismissed unless the complainant requests a hearing. Therefore, the BCCLA recommends that at the beginning of the process respondents to a harassment complaint have the opportunity to object to a complaint on the basis that the complaint is trivial, frivolous, made in bad faith or without plausible foundation.
Finally, with respect to assessments as to whether a complaint is trivial, frivolous, made in bad faith (or complaints with “improper motives” using alternative wording from the B.C. Human Rights Code) or without a plausible foundation, it is more appropriate for a person with an adjudicative function to make this determination rather than someone who has an informational, educative and administrative role. Rather than giving this task to the Policy Coordinator, whose role is clearly educative and administrative, it would be more appropriate that someone appointed from the Policy Board consider this issue if the respondent raises a preliminary objection to a complaint on this basis. An appeal to this initial determination to the Chair of the Policy Board should be available as exists in the SFU Policy.
(8) The BCCLA recommends that the draft revised policy be amended to make clear that the President’s final authority regarding interpretation of the policy’s procedures be applicable only to general procedures. The policy should make clear that, in contrast to general procedures regarding the policy as a whole, with respect to a hearing by a Resolution Panel, the adjudicator should retain final authority over procedure within the hearing itself.
Article 5.1.5 of the Policy indicates that “[Q]uestions of interpretation or application of the Policy or its procedures shall be referred to the President whose decision shall be final.” This provision appears to at least create confusion, if not defeat the purpose of appointing experts in legal process to preside over harassment hearings. To clarify this potential inconsistency, the policy should indicate that the President has final authority over issues of general interpretation and procedure regarding the policy as a whole. With respect to Resolution Panel hearings, the policy should also clarify that the adjudicator has authority to make decisions regarding procedure within a hearing and to make factual and substantive determinations regarding whether harassment has occurred.
The B.C. Civil Liberties Association commends the efforts of Simon Fraser university to establish a harassment policy that is fair and just while adequately dealing with real problems of harassment. This is a challenging task that requires fine balances to be struck between sometimes competing values that our Association works to protect. The BCCLA hopes that our comments will assist the university in its endeavour.