California looks again at powers in wake of Marcy case

By Colleen Flaherty, for Inside Higher Ed

October 19, 2015

Facing criticism for not taking harsher action against a famous astronomer found to have repeatedly violated the University of California’s sexual harassment policies, the system is vowing to re-examine its deadlines for pursuing termination of tenured professors accused of misconduct. In so doing, it joins a number of other institutions that have recently re-evaluated their policies surrounding the reporting of harassment to give alleged victims more time.

In a letter to the system’s Board of Regents and campus chancellors last week, Janet Napolitano, system president, said that the recent University of California at Berkeley investigation against Geoff Marcy “has highlighted the urgent need to review university policies that may have inadvertently made the investigation and resolution of this case more difficult”. The investigation, which did not result in Marcy’s termination, became international news this month after it was leaked to the media. Amid public pressure, he has since stepped down from his professorship.

Napolitano in her letter directed the formation of a Joint Committee of the University of California Administration and the Academic Senate to develop recommendations on how to best handle cases of sexual assault, violence and harassment involving system faculty members. Among other issues, Napolitano said, the committee will look at “whether the current statue of limitations needs to be revised, given that complaints often involve misconduct that occurred several years ago, as was the case in the Berkeley situation”.

Some students harassed by a prominent professor, one who could make or break their careers, say that it is extremely difficult for them to bring charges while still enrolled at the institution where the harassment is taking place. And this means tight timelines for reporting or reports that can lead to disciplinary action, or both, may have the impact of letting harassers off the hook.

The new committee, which will include faculty members and students, is an extension of the system’s ongoing President’s Task Force on Preventing and Responding to Sexual Violence and Sexual Assault. Because Napolitano said that the Marcy case “underscored the need to accelerate those efforts”, the committee will present its findings no later than February.

Marcy’s serial harassment case made headlines not only because it shed light on an issue the field has struggled with for decades, but also because of Berkeley’s response: instead of moving to fire Marcy, the most prominent figure in exoplanets – or the study of planets beyond the solar system – the university made him promise not to repeat the behaviour, and to abandon his due process rights in the event of a future incident. Many scientists said that Berkeley essentially condoned years of bad behaviour, and asked why it wasn’t willing to do more. Critics said that Marcy’s megastar status and attendant funding factored into the university’s decision, but Berkeley offered a different explanation: that it was limited by system policies governing reporting deadlines for harassment and other complaints against professors.

“It is important to understand that as Berkeley’s leadership considered disciplinary options, we did not have the authority, as per University of California policy, to unilaterally impose any disciplinary sanctions, including termination,” Berkeley chancellor Nicholas Dirks and provost Claude Steele said in a statement last week announcing that they’d accepted Marcy’s resignation amid pressure from colleagues, and addressing some of the controversy surrounding Berkeley’s actions.

“Discipline of a faculty member is a lengthy and uncertain process,” they continued. “It would include a full hearing where the standards of evidence that would be used are higher than those that are applied by the [university’s] office for the prevention of harassment and discrimination in the course of its investigations. The process would also be subject to a three-year statute of limitations.”

The three-year timeline refers to university policy, specifically its faculty code of conduct, which says that “no disciplinary action may commence if more than three years have passed between the time when the chancellor knew or should have known about the alleged violation of the Faculty Code of Conduct and the delivery of the notice of proposed disciplinary action”.

While Berkeley determined that Marcy was a serial harasser of female students, the four complaints that made up the investigation pertained to the period between 2001 and 2010. So while the alleged victims – all students who have since graduated – were not limited by Berkeley’s timeline in filing complaints under Title IX of the Education Amendments of 1972, which prohibit gender discrimination in education, the university said that its hands were tied by its own policy regarding disciplinary action. It could find Marcy guilty, but not impose significant sanctions.

Presumably, lengthening Berkeley’s reporting-to-discipline timeline or eliminating it altogether could help to prevent known harassers from escaping termination going forward.

Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management and an expert in Title IX proceedings, said that three years is actually generous compared with the approximately one year that many institutions historically have offered as a reporting deadline. It’s also more generous than state and federal employment law timelines. California’s Department of Fair Employment and Housing says that complaints must be filed within one year of the date of the last incident of sexual harassment. The US Equal Employment Opportunity Commission says that complaints must be filed within 180 days.

But in recent years, Sokolow said, many colleges and universities have moved toward eliminating their statute-of-limitations-like policies for reporting harassment altogether.

“This is a moment of transition,” he said. “A lot of campuses have moved in the last couple of years to policies where there’s essentially no limitation.”

Sokolow said that’s the right move, since “if you know anything about trauma, many victims don’t come forward right away”. But he said that it’s best practice to incorporate into any sexual harassment policy a warning that timely reporting means easier processing of complaints, since evidence and memories are fresher.

Asked if it was possible that any timeline was “too long” – such as decades after an alleged instance of harassment – Sokolow said, “My personal feeling is your misconduct should come back to haunt you, no matter how long.”

The University of Houston is one institution that has no reporting deadline in its sexual harassment policy, which applies to students and employees, including faculty members. Richard A. Baker, vice-president for equal opportunity services for Houston and a regional director for the American Association for Access, Equity and Diversity, said that it’s not uncommon for victims of harassment to wait to report it because such experiences “could induce trauma that is severe and impactful and a victim may need time to cope and sort through it. To require a victim of sexual misconduct to report or pursue a complaint within a specific time table not determined by them is insensitive to the trauma they may have suffered.”

The American Association of University Professors has no official policy regarding timelines for reporting harassment that could lead to termination, but says that faculty or a representative body thereof should have primary responsibility for developing any new rules on dealing with complaints against faculty members.

Michael Olivas, the William B. Bates distinguished chair in law, also at Houston, and director of its Institute for Higher Education Law and Governance, is former general counsel for the AAUP. He pointed to media accounts alleging that Marcy’s supervisor had been notified as far back as 2005 about his behaviour, and guessed that the university therefore had earlier opportunities to intervene but didn’t. Unfortunately, he said, while universities provide safe harbour to geniuses and the intellectually eccentric, they also sometimes shelter status-holding “schnooks”.

“I don’t care how accomplished they are, they need to be brought to heel,” Olivas said.

Joan Schmelz, a professor of physics and astronomy at the University of Memphis and a longtime advocate for women in astronomy, helped some of the women in the Marcy case to file their complaints. She said that whatever timeline changes Berkeley makes, a bigger cultural shift away from harbouring harassers is needed.

“Changing the statute of limitations for harassment would be a step in the right direction, but it is like putting a Band-Aid on a nicked artery,” she said. “We have to find a way to change the system – to take the pressure off the young women in the most vulnerable stages of their careers and shift it to the senior men, many of whom have admitted to knowing this ‘open secret’ for years if not decades.”

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