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Should Someone Who Has Been Harassed By A Faculty Member Sign A Confidentiality Agreement?

May 26, 2012, 2:04 pm

The answer, in short, is no.  Never. And if an administrator tells you that you must do so in order for the university to act, that person is bluffing.

I am moved to address this question because I stumbled upon a blog post written by a student I used to know.  I am not going to comment on the specifics of this case because I know absolutely nothing about it beyond what is alleged in the post.  But I do know that I have heard this story more than once, and it sounds familiar.  I also know that it is routine on college campuses to remand charges of sexual assault and sexual/racial/gender harassment made against faculty to secret administrative processes which have little or no legal standing except in the (important) sense that institutions must act on violations of their own rules.  What is too often the case is that the person harmed by a faculty member is asked, and agrees, to keep the matter in confidence in exchange for the faculty member being disciplined.

Can such a promise be enforced? Sometimes.  For example, I have known some situations in which the promise of confidentiality by the harmed person has been obtained in exchange for the institution voluntarily paying cash damages.  In the event of a tenure case that is irreparably fouled by some kind of prejudice or prejudicial behavior, the person who has had hir life turned upside down has a good reason to keep that promise:  a paid year, or a chunk of cash, that makes a reasonable period of transition away from an institution possible would have to be returned if the agreement were to be breached.

But in the vast majority of cases in which harassment or assault is alleged, people who have been harmed by faculty members agree to confidential university proceedings and continued silence in the matter in exchange for the assurance that the university will “do the right thing.”  We probably don’t hear about, or from, the people for whom this exchange works out.  However, in many cases it does not work out, and let me tell you:  in my experience people who are ultimately accused of inappropriate, harassing or prejudicial acts are usually repeat offenders whose behaviors are well-known to other faculty and to administrators. Students, in particular, often assume that the faculty member in question will be acknowledged by the institution as a danger to all students and, as a consequence, fired.

But it is very rare that this is the case. Although the faculty member may be called on the carpet and shamed in some way, s/he usually ends up back in the classroom, and very soon.  That person may even agree with the facts of the case as alleged by the accuser, but be adamant that s/he has done nothing wrong, university regulations are meddlesome and overprotective, and that no real harm occurred. So the student is now faced with the quandary of how to deal with the fact that there has been no visible discipline, the faculty member’s continued presence on campus, and the injunction to never speak about the matter again. To anyone.

I have argued for some time that most people are not adequately prepared for the possibility that they will be harmed in some way on a college or university campus. Who includes in a college or grad school to-do list: “Think seriously about how to respond if a professor/senior colleague makes unwelcome advances”? The vast majority of students who make it to a four-year college or university have succeeded at school and tend to assume that administrators have their best interests in mind because they have rarely or never experienced anything else.

Wrong -o. Administrators are not in charge of justice or empathy, as anyone in the vocational track at your high school might have told you.  They protect the best interests of the institution, as they understand them, and will do a great deal to silence people who threaten a school’s reputation.  This includes throwing individual students and faculty who have turned into walking lawsuits under the bus and covering up faculty misbehavior many times over.  And it does not include the highly public process of breaking faculty tenure to get a creepy jerk, chronic groper or bigot off campus.

So here is what you need to ask when you are making a charge of this kind and before you agree to a confidential internal investigation:

  • Do I have the right to be represented by an attorney? The answer is yes.  No university can strip you of your right to an attorney, and administrators are not released from their legal obligation to enforce institutional codes of behavior and/or report crimes just because you want an attorney.  If the answer to this question is no, or the people you are talking to give you elaborate reasons why it will be worse for you to have an attorney present, you know the fix is in.
  • Will I receive a copy of the full report of the investigation of this incident, including a transcript of my original complaint and the faculty member’s defense? The answer to this question should be yes.
  • Will evidence of my complaint, if it is found to be credible and if the faculty member is not terminated, be preserved in the faculty member’s permanent institutional record? The answer to this question should be yes.
  • Will the faculty member be fired if my claim is found credible? What are the possible sanctions my harasser might be subject to, and under what conditions?
  • How will the institution protect me from further contact with this person, in the event that s/he is not terminated? While there is no correct answer to this question, you need to thimk about whether this matters to you and what you might require.
  • In the event that my harasser claims that I am perjuring myself, or that I misunderstood the event(s) in question, by what procedure does the university plan to resolve the discrepancy in our accounts of this matter?
  • Am I entitled to an advocate drawn from the tenured faculty, who is trained in these matters, to serve as an advisor whose sole responsibility is my well-being? The answer to this question should be yes.

These are all very simple questions:  you should ask them, and receive straightforward (written!) answers, before you agree to a confidential process that might make it harder to seek redress in the courts or achieve a better outcome internally.

This is what always stuns me: that university officials who are all about confidentiality assume that serious accusations will not take on a life of their own, and have not done so already. People who have been harmed talk to their friends, often prior to reporting harassment claims (it is not infrequently the friends who persuade people who have been harmed to act.) Students and faculty always know who the problem faculty are already – so why be so heavy handed about the secrecy? Furthermore, if someone is being falsely accused, administrative secrecy makes the accusation seem true — if not in whole, in part, and the false accusation taints the faculty member’s reputation forever.

But the other thing that stuns me is that students, in particular, think that if they don’t keep their mouths shut, the college or university can reach out and do more damage than has been done already. You can’t be expelled for demanding a public hearing for something that you could take to the police.  Sexual, gender and racial harassment is a violation of your civil rights. No university administrator can change that — but they can undermine your self-confidence that you have rights when they pretend to be sympathetic and then hang you out to dry.

So the next time you, or someone like you, is being asked to sign away those rights in exchange for reassurance that the person in question will be “dealt with appropriately”? Don’t do it.

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