Expert on sexual harassment policies to speak at Oct. 5 meeting of Iowa AAUP
Is ISU's New Sexual Harassment Policy up to Par?
INFORMATION ON APPLICATION
FOR AAUP MEMBERSHIP
September, 1996
Linda E. Fisher, associate professor of law at Seton Hall School of Law and director of the Seton Hall Center for Social Justice, heads the program for the fall meeting of the Iowa Conference, to be held October 5 at Iowa State University in Ames. In the afternoon, a panel of ISU faculty and administrators will discuss program discontinuations at Iowa State.
Fisher will talk about ways of resolving the conflict between two goals: protecting academic freedom and preventing sexual harassment in academia.
Fisher's knowledge of sexual harassment policies comes from her work on AAUP committees W and A, which spent several years revising the AAUP statement on sexual harassment (The new policy was finally approved in June of 1995). Fisher, who holds law degrees from Northwestern University and the University of Chicago, also has extensive experience in civil rights litigation.
Her presentation will be followed by a panel discussion. Panelists will be Joanna Courteau, chair of Iowa Committee W and member of the AAUP National Council; Greg Scholtz, chair of Iowa Committee A and one of the principal architects of the Wartburg College sexual harassment policy; and Carla Espinoza, interim affirmative action officer and assistant vice president for human resources at ISU. Ms. Espinoza previously had been director of the department of human resources at the University of New Mexico and assistant chancellor of affirmative action at the University of California-Irvine. She has drafted several sexual harassment policies and served as an expert witness in sexual harassment cases. The discussion will be moderated by ISU chapter president Mack Shelley.
In the afternoon, a panel consisting of ISU faculty and
administrative staff will discuss recent program discontinuations
at the university.
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| 9:15 | Registration (free of charge) in Campanile Room, Memorial Union |
| 10:00 | Keynote Address: "Harassment
Policy: Chapter Two" Professor Linda Fisher, Seton Hall School of Law |
| 11:45 | Panel Response Panelists: Joanna Courteau, Carla Espinoza, Greg Scholtz |
| 11:45 | Lunch Break (Meals can be purchased in the Union basement and consumed in the Campanile Room.) |
| 12:20 | Panel Discussion of Program
Discontinuations at ISU Panelists: ISU faculty and administration |
| 1:45 | Business Meeting *President's Report *Treasurer's Report *Committee Reports *Chapter Reports |
| 2:00 | Committee Meetings |
| 3:00 | Adjournment |
There are vacancies available for you to help us fill
positions at every level of governance of the ISU chapter. Please
send an email message to mshelley@iastate.edu, to volunteer or to
nominate a colleague for these offices:
1012 Fourteenth Street, NW
Suite 500
Washington, DC 20005-3465
1-800-424-2973
The American Association of University Professors, founded in 1915, is the nation's leading organization dedicated primarily to protecting academic freedom. AAUP establishes and implements standards for tenure and academic due process. It is the only organization exclusively representing college and university faculty members. Active membership (full-time, entrant, part-time) is open to any person holding a professional position of teacher or researcher or similar academic appointment. In addition, membership in the following categories is available: Associate, Graduate Student, and Public. Active AAUP membership is open to teaching faculty, researchers, or those holding similar academic appointments at accredited colleges and universities. Graduate students, administrators, and members of the public also are eligible to join the Association. AAUP has members at more than 2,000 institutions, and over 800 chapters. State conferences, AAUP's state-level organizations, work on legislative and educational issues within states.
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Information about how you can become a member of AAUP is
provided at the end of this newsletter.
Is ISU's New Sexual Harassment
Policy up to Par?
Last winter the ISU AAUP chapter sent the following
document to the Faculty Senate. Unfortunately the Senate's busy
schedule last spring did not allow for discussion of the issues
raised below. We are hoping that the Senate will discuss the
issue this year.
The ISU sexual harassment policy was written in 1982 and last
revised just over a year ago. Since its latest revision it has
been introduced to staff and assistors have been trained to
advise people in accordance with the policy. Next up are plans to
visit individual departments in an effort to educate their
members about the sexual harassment policy. Unfortunately, the
ISU sexual harassment policy is not up to AAUP (American
Association of University Professors) standards and it can, as it
now stands, severely impede academic freedom in addition to
obstructing due process.
Sexual harassment in the workplace and in academia.
ISU's definition of sexual harassment closely emulates the guidelines adopted by the EEOC (Equal Employment Opportunity Commission) in 1980 to govern the workplace. The EEOC guideline has been very influential, although it does not have the full force of law. The ISU definition is as follows:
Sexual harassment, in its legal definition, includes unwelcome sexual advances, requests to engage in sexual conduct, and other physical and expressive behavior of a sexual nature where (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or education; (2) submission to or rejection of such conduct by an individual is used, or threatened or suggested to be used, as the basis for academic or employment decisions affecting the individual; or (3) such conduct has the purpose or effect of substantially interfering with an individual's academic or professional performance or creating an intimidating, hostile, or demeaning employment or academic environment. Determination as to whether the alleged conduct constitutes sexual harassment should take into consideration the totality of the circumstances, including the context in which the alleged incidents occurred.
The paragraph following the definition states that "Interpretation of this policy will give due consideration to the principles of academic freedom and freedom of speech."
AAUP fully recognizes the EEOC guidelines as applying to the university in its non-academic functions. But AAUP has argued that those institutions that have adopted or emulated the EEOC guidelines pay insufficient attention to the protection of faculty to express ideas in academic context. At its best, the academic environment consists in a robust exchange of ideas whose expression may by some be felt to be intimidating, hostile, or even offensive. The exchange of ideas cannot, and should not, be prohibited simply because they are felt to be intimidating and/or hostile. It is important to keep the learning environment open to the exchange of ideas however distressful they might feel to some students. This, however, cannot be done without making a distinction between sexual harassment in the workplace and sexual harassment in academia. Repeatedly displaying nude drawings and openly discussing them in the workplace likely constitutes sexual harassment; doing so in the appropriate context in an art class does not. Repeatedly discussing and displaying pornographic materials in the workplace likely constitutes sexual harassment; doing so in the appropriate context in a sociology class does not. And repeatedly reciting sexually laden poetry in the workplace likely constitutes sexual harassment; doing so in the appropriate literature class does not. A sexual harassment policy that fails to draw the appropriate distinction between sexual harassment in the workplace and sexual harassment in academia is thus likely to make a variety of subjects, including philosophy, literature, sociology, political science, and art, a minefield of forbidden ideas.
Any sexual harassment policy must offer a standard that is reasonably clear, ascertainable, and administrable. A policy, like the ISU policy, that only remarks as an afterthought that it will give due consideration to academic freedom, fails to provide that standard. When a rule or a definition regulates what a faculty member may or may not say to students in an academic setting or during an academic discourse, the faculty member should not be required to guess as to what may be said. But, given the ISU policy, the ISU faculty is left guessing as to what may be said. First of all, the policy is unreasonably strict when it says that "such conduct has the purpose or effect" to, for example, create an intimidating environment. What provokes discussion among some students, what stimulates thought among some, might deeply offend another. And some students feel intimidated by most views significantly different from their own. The wording in the ISU policy leaves a faculty member guessing not just what might reasonably be taken to be sexual harassment, but also whether the audience might include some unusually, and perhaps overly, sensitive students. To state later that due consideration will be given to academic freedom does nothing to clarify the policy. As a result it is likely that the ISU policy will have chilling effect on academic speech.
The AAUP-suggested guidelines for sexual harassment policies were approved by Committee W on the Status of Women in the Academic Profession and adopted as Association policy by the Council in June 1995. The AAUP definition of sexual harassment is as follows:
Sexual advances, requests for sexual favors, and other speech or conduct of a sexual nature constitute sexual harassment when:
Note especially the difference between the third item of the
ISU policy and the AAUP guidelines. Unlike the ISU policy, the
third item in the AAUP guideline states conditions that are
reasonably clear, ascertainable, and administrable when it states
that if sexually offensive speech takes place in the teaching
context, it must also be persistent, pervasive, and not
germane to the subject matter.
Complaint resolution procedures
The ISU complaint resolution procedures differ significantly from AAUP guidelines in that once a formal complaint is launched, the matter is entirely in the hands of administrators. According to the ISU policy formal complaints are handled by an AAO (Affirmative Action Officer) who conducts an investigation: "The investigation will include interviews with the complainant or complainants, with the person against whom the complaint has been brought, and with anyone else who might have information that would be helpful. Based on this investigation, the AAO will submit findings of facts, as well as a recommendation with respect to appropriate action to resolve the complaint, to the unit administrator of the person against whom the complaint was filed."
This procedure differs from the AAUP guidelines in at least two significant ways:
Furthermore, the ISU policy states that "Any employee
against whom disciplinary action is taken as a result of a formal
complaint may appeal that action in accordance with the appeals
procedure defined in the appropriate handbook." This right
of appeal assured by the policy does not meet the test of
academic due process, for it shifts the burden to the faculty
member to demonstrate why a sanction should not be
imposed. That burden should properly rest with the administration
to be established in an on-the-record adjudicative hearing before
an independent faculty body.
The importance of a victim-friendly policy
The AAUP guidelines about complaint resolution procedures focus, to a large degree, on the formal process dealing with a formal complaint. A formal hearing might be necessary in some cases, so procedures for formal hearings have to be in place. But, although sometimes necessary, formal hearings are probably less likely to lead to a conflict resolution, and they are not victim-friendly. The AAUP guidelines therefore leave ample room for informal procedures, and we certainly encourage that a harassment policy include guidelines for informal procedures where highly experienced and qualified people try to aid in conflict resolution.
The ISU sexual harassment policy allows for informal procedures. According to the policy, the informal process involves the complainant bringing the complaint to an administrator with authority over the person against whom the complaint is directed. The administrator is then expected to review the complaint and explore avenues for resolution. Legal services and the Affirmative Action Office are available for guidance in this process.
The main concern with this procedure is that, although legal services and the Affirmative Action Office are available for guidance, the person in charge of the informal process is an administrator who most likely has a very limited experience in dealing with sexual harassment complaints. As a result, it becomes less likely that the informal process leads to a satisfactory resolution, and it becomes less likely that a very complex issue will be dealt with in a sensitive and firm way. Because of its victim-friendliness and greater likelihood of conflict resolution, there is a reason to restructure the informal process in such a way that knowledgeable and experienced people can be directly involved, thus ensuring victim-friendliness as well as minimizing the possibility of a formal complaint.
Given these numerous and serious shortcomings of the ISU
sexual harassment policy, we encourage and request that the
policy be thoroughly revised so as to comply with the AAUP
guidelines.
The ISU Chapter and Iowa Conference have a new website, containing various information about AAUP as well as a number of links to other sites. The URL is:
www.public.iastate.edu/~aaup/
The most recent issue of The Advocate, the higher
education newsletter of the National Education Association,
reports that a unit of approximately 70 Deans, Associate Deans,
and Assistant Deans was certified at the Los Angeles Community
College District (where a joint affiliate of AFT and NEA
represents the full-time faculty), and that an initial contract
has been negotiated.
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APPLICATION FOR AAUP
MEMBERSHIP
This is a _____New Application or an _____Application for reinstatement. Please do not use this form to renew your current membership.
Note: Combined annual membership in
the ISU local chapter and the Iowa state conference is just $18.
A check in this amount made out to AAUP-ISU Chapter should be
sent to Kathleen Waggoner, Treasurer, 380 Town Engineering. This
is separate from national membership.
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Return this form and check to: AAUP, 1012 Fourteenth Street, NW, Suite 500, Washington, DC 20005
or return to Kathleen Waggoner,
Treasurer, 380 Town Engineering, ISU.
1996 Annual National and State Dues, for Iowa members (National Dues are tax-deductible as a charitable contribution except for $26 attributable to Academe): Rates are valid through December 31, 1996.
Full-Time $115 (Teacher/researcher or similar academic appointment at an accredited college or university).
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Joint $58 (Couples with one full-time member may enroll a 2nd member at a reduced rate).
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Public $87 (Public supporters not eligible for any of the above categories).