This is the Court of Chancery, […] which gives to monied might the
means abundantly of wearying out the right, which so exhausts
finances, patience, courage, hope, so overthrows the brain
and breaks the heart, that there is not an honourable man among
its practitioners who would not give--who does not often give--the warning,
Suffer any wrong that can be done you rather than come here!"
— Charles Dickens, Bleak House, ch. 1
For a number of years, I was the "Student Mediator" for an English Department at a Midwestern university. Basically, I handled complaints, retaining for handling by my "office" — which was just me in my office — cases about grades and other academic matters and sending on to The Proper Authorities anything with legal implications. Most specifically, I was forbidden to get involved at all with anything that had to do with racial or gender discrimination, or with sexual harassment.
I'm not sure what the law is on confidentiality here, but I was brung up, so to speak, in a very strict, almost priestly view of confidentiality about keeping in turst what I was told by students as a teacher or (this can get complicated) as a professor.
My first semester teaching, a student pretty well confessed in an essay to a non-violent felony; and I sought advice from an older colleague about what my responsibilities were in this case. I was told that my obligation was to keep my mouth shut even if that meant I risked jail for not reporting the crime.
I fudged my way around that dilemma — the Speaker of an essay is not necessarily the author, right? — but I assimilated the lesson and might run into some dilemmas nowadays when teachers are expected, yea, sometimes legally required, to nark on their students' dark visions, suicidal thoughts and such, to say nothing of an actual crime.
So I'll tell these stories but will leave out identifying details, less actually because of legal or ethical issues and more because I trained myself early on in the Mediator job a kind of Doublethink, where I'd just forget confidential matters (and, unfortunately, all forgetting has become increasingly easier and more likely as I've aged).
"So there I was," as Jeff Foxworthy says a good story should begin — so there I was sitting in my office when a graduate student came in, shut the door, and said she needed to talk about a student's harrassing her. I immediately gave my boiler-plate disclaimer that I'd listen to her briefly, but if I determined that she had a sexual harrassment issue, I'd refer her to the Affirmative Action Officer, who at that time and place handled such matters.
She said it wasn't sexual harrassment and she she wanted to talk to me. In fact, she'd hesitated to talk to anyone because she felt harrassed, but it wasn't sexual.
She and I talked, and she repeated that she didn't think the harrassment wasn't sexual and she wasn't positive it was harrassment, but that she felt harrassed in some sense by one of her students and wanted help.
I asked her, pretty rhetorically, why she'd care what her student's motivation was: if he was harrassing her for whatever reason it was something we were going to stop; and if she just felt harrassed, there was still an issue to be worked out.
The significant point here I'll make with a totally rhetorical question: What is this obsession with sex in American culture that a sophisticated and intelligent person could live into her 20's and earn a B.A. and think that harrassment has to be sexual before it's, in some sense, actionable?! The guy bothering her in class could be a gay eunuch unfailingly faithful to a vow of chastity, and if he was harrassing her he was harrassing her — period: and even if she just felt harrassed, she, the student, and some disinterested mediator needed to talk.
The second story involves a woman I sort of knew, who came into my office, shut the door and said she wanted my honest advice as to whether or not to proceed with an ambiguous case of sexual harrassment. I repeated the boiler-plate disclaimer, and she said she'd heard me but really needed something other than the official line; she needed practical advice.
Then she described her case very briefly and in general terms and asked if she should see the Affirmative Action Officer.
I said I'd get back to her as soon as I could.
She left; I called the Affirmative Action Officer and announced I had a question: If a student walked into the AAO office and stated that she may have been sexually harrassed, would she be immediately drawn in to the official grievance system, or was there the possibility of informally dealing with the case?
The Affirmative Action Officer said that their office was still allowed to proceed informally, and I said, "Okay, I'm sending over a student."
And I did. I advised the student to go to the Affirmative Action Office and say she needed to talk and needed advice — and if then she wanted to proceed formally, she should; if she wanted otherwise, as I suspect she did, she should insist on informal mediation for as long as that might work.
My advice would be improper nowadays, maybe illegal.
The practical issue was, though, that the Formal System on sexual harrassment was so legalistic, complex, and onerous that to be charged was to be punished, and to bring a charge was to be punished.
I could not in good faith advise a student even then to enter the Kafkaesque world of a university judicial system — to say nothing of the civil and criminal law — unless she had very little choice. The Affirmative Action Office was still allowed a little flexibility, and it was a sensible decision for the student to use that office to get her problem resolved informally.
Nowadays, it would be a real dilemma for me if the student asked me for honest advice as what would be best for her, and the only response I could lawfully give her was to tell he she had to file a formal report.
My university was moving with the tide toward Zero Tolerance and removing flexibility from the disciplinary system — soon faculty members would be required to formally charge a student with cheating even if the student had just erred in writing a citation — and the messy compromises that might've been best for the student who asked my advice would not now be tolerated.
Something like a Zero Tolerance/no flexibility/handle it formally position is now orthodox, and that position is defensible.
Legal issues should be handled by experts, and the necessity to protect the university community against … predators (?) outweighs the desires of a student who doesn't want to get involved in a time-consuming, anxiety-increasing, legalistic and perhaps then legal process.
Okay, but we need to recognize the costs.
To start with, various communities are starting to insist that increasing numbers of us go to law in one way or another to get our problems solved, and "underreporting" is seen as an important flaw in the system (although there may be the irony that a serious area of underreporting is sexual assault against boys and men). So nowadays, there wouldn't be informal mediation for the student who might, or might not, have been sexually harrassed. And within my time as a professor there was the case of a graduate-student couple with a domestic violence charge against the male, where the couple wanted to reconcile, but some of their fellow students wanted the offender thrown out of the graduate program and forbidden to come on campus — and for the two to separate.
The woman's desire to forgive her partner had political implications, and her fellow feminists had no patience for the "false consciousness" that would allow her to take the bum back and get on with their lives.
And the law is working its way down from universities and adult society more generally into the schools, where cops are on duty and sometimes arrest kids for misbehaving, and a whole lot of American young people are getting arrested, and not just the — sorry about the cliché — usual suspects. As a recent headline has it, "In The US, Half Of All Black Males And 40% Of All White Males Are Arrested By Age 23 […]"; and even if those numbers are high, an arrest rate of even 10% is staggering.
Having a student in pain in my office asking my honest advice — I knew what to do; in any event, I did what I did for those student "clients" back when I didn't risk my job and career to do so: I made a phone call, asked an impertinent question of the Affirmative Action Officer, and advised the student to go up the Great Chain of Bureaucracy a bit until she hit the level of the lawyers. Then she should seriously rethink her options.
More generally, though, I'm not sure what we Americans can do.
I have as a slogan on a "sig" line, in red, "Screw 'John 3.16'; try 2 Henry VI 4.2.70 (lineation may vary)." The references there are to a Biblical teaching people used to advertise on signs at sporting events (John 3.16), and to one of William Shakespeare's great early lines, "First thing we do, let's kill all the lawyers!" That is a temptation, attorney-cide, but some of my best friends, and relatives, really are lawyers, and I'm reluctant to call for lynching anyone, but especially not friends and relatives. Also, in more serious policy terms, there is a good insight in the old joke that we "decline" and "inflect" words in English more than your grammar teacher said we do. In actual usage, we're convinced on the one hand ,"I am firm. You are obstinate. He is pigheaded"; and on the other, relevantly here, "I am flexible. You are spineless. He is arbitrary and tyrannical."
There's much to be said for the Rule of Law, precedent, consistency, and due process — however tortuous the process. But there is little to be said for arresting kids for acting up at school, or, for that matter, for just getting drunk or smoking pot. And it is a real question what to tell individuals who must seriously think about how to get a problem solved and might, or might not, want to go to law; in some cases, the disciplinary system of an American university or the US justice system might deserve the warning about the 19th-century English Court of Chancery: "Suffer any wrong that can be done you rather than come here!"