Up against the invincible: Side-stepping the system
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This is part 2 of a three-part series. Go back and read the introduction.

Regarding allegations against prominent neuroscientist Thomas Jessell, former history professor William Harris, and Business School professor Geert Bekaert, the complainants all sought to pursue litigation in varying forms—through either threats of legal action or direct lawsuits. Of those, only Bekaert’s actually made it to a trial.

Outside of the legal system, the University has its own adjudicatory proceedings—including a full trial—for revoking the tenure rights of its faculty in its charters and statutes, which have been amended to include fundamental policies regarding the University’s function as an academic institution since 1755.

But according to Bollinger, article 75 of Columbia’s statutes—which outlines the only way in which Columbia may officially strip a faculty member of tenure rights—has never been invoked.

Instead, resolutions of most Title IX cases involving tenured University faculty include informal negotiations, in which punitive measures are decided through confidential mediation between administrators, faculty, and a complainant—if they seek action. Disciplinary measures range from pushing a faculty member into retirement to cutting their salary, but never fully dismissing them.

“There are mediation negotiations that happen, and within that framework these take place, and a solution is reached or a resolution is reached outside of that formal process because that formal process is so difficult,” Bollinger said.

But these negotiations afford faculty significant power—and the complainant relatively little ground—to push against the manner in which the faculty is disciplined. Because the faculty has not been stripped of tenure, the faculty member must agree to any punitive measure that restricts their ability to access campus, teach courses, or conduct research during private meetings with University administrators.

“It’s a negotiation through the whole set of factors, including this value of tenure,” Bollinger said. “This is different from a corporation or an organization where there’s no tenure, and you can simply discharge someone, fire them. We can do that, but it’s in the context of tenure, and that tenure barrier is very difficult to overcome.”

After a jury in federal court found last July that Bekaert had retaliated against Ravina, Columbia independently stripped his titles last fall and attempted to cut his salary. Though these changes could be made without Bekaert’s consent, the lack of official guidelines, coupled with potential litigation, opened room for a back-and-forth even after the sanctions had been announced, documents show.

Additionally, none of the imposed discipline prohibited him from teaching. This semester, Bekaert is the lecturer for a course titled “Asset Management,” open to all Business School students.

Soon after the trial, in October 2018, the University said it planned to dock half of Bekaert’s 2018 salary over a three-year period. Hubbard also published and shared with Business School faculty a censure condemning Bekaert’s “unprofessional behavior towards a junior professor.”

In response, Bekaert hired legal counsel to challenge the University; and on Nov. 9, Hubbard informed Bekaert that the University would withdraw its threat of monetary discipline.

When the University refused to withdraw the censure, however, Bekaert’s legal counsel again wrote a letter to Columbia’s lawyers, arguing that the statements outlined in the censure held no grounds for publication and were “premature and unnecessarily punitive.” The letter also argued that no current policies exist for faculty discipline short of dismissal.

“Since there does not appear to be any procedure governing the imposition of these types of discipline, how did Dean Hubbard … arrive at the language of the censure and the forfeiture of the endowed chair?” the letter read. “To date, the process has been opaque and implemented by executive fiat. Moreover, what due process, if any, was afforded Professor Bekaert? It is disturbingly clear that the answer to the latter question is: none.”

The University maintained its stance on the censure and stripped Bekaert of his endowed chair status, a title given to faculty after a donation is granted as a “means of recognizing unusual academic distinction.”

On Nov. 26, Bekaert’s counsel filed another letter to Columbia, condemning its “contemplated forfeiture of his endowed chair” as a move “calculated to destroy Professor Bekaert’s reputation.”

The University declined to comment on the current state of proceedings involving Bekaert, though Bekaert has still not regained his title as an endowed professor.

Generally, when complainants threaten legal action against a professor and the University, Columbia may introduce the prospect of alternative dispute resolution as a means of achieving resolution—but outside of federal and state judicial systems. ADR proceedings are largely overseen by private, for-profit organizations such as JAMS Solutions for Higher Education, which designate a case manager and a “neutral” to engage objectively with all interested parties to facilitate diplomacy, with the ultimate goal of reaching a binding settlement.

“JAMS Solutions can be adopted in whole or in part, independent from or in conjunction with pre-established institutional policies and procedures,” the website highlights under a list of reasons to use alternative dispute resolution. The website points out that, by using their services, universities will ultimately save on litigation costs and preserve donor relationships by avoiding publicly mishandled Title IX cases.

According to Sanford Heisler Sharp lawyer Alexandra Harwin, who has been involved in a number of JAMS negotiations with Columbia, the mediation process entails a form of “shuttle diplomacy” in which the adverse parties do not come together in the same room but communicate via a mediator.

Within this context, the complainant has some ground to request certain measures be taken against the faculty member, as long as it “directly impacts their day-to-day operations,” Harwin said. This may include the physical presence of the professor in relation to the complainant, the level of communication that occurs between the two, and the recusal of the faculty in any educational or employment-related decisions.

But the complainant must first negotiate the terms of what they can even request, according to Harwin, and when it comes to questions of conditions that do not directly affect their day to day lives, such as the faculty member’s access to university housing, there are no clear standards for what those terms may be.

“Whatever is going on between [a] university and a bad actor is very well a separate matter, not something that the [complainant] would be entitled to know the full details of those discussions,” said Harwin.

In practice, this means that there is no guarantee that the complainant—even once they sign the settlement—will be able to know the extent to which a professor has access to campus, or whether their daily routine might be interrupted by an unexpected run-in.

And by agreeing to JAMS mediation, the complainant in many cases forever signs away their right to pursue the allegations they raised in court.

The most common outcome of negotiations, according to Harwin, is something along the lines of a no-contact directive. But according to Title IX experts, no-contact directives, which prohibit direct communication between the complainant and the alleged perpetrator, are usually proposed as an interim measure—not as an end goal.

“Interim measures often go into play almost immediately once we hear something; they generally don’t imply an outcome. They are just designed to be exactly what they are: Interim measures, they’re not sanctions, they’re not remedies, they are just trying to protect people,” said Peter Lake, a former coordinator for Title IX and a national expert in higher education compliance.

Even so, these informal proceedings are also widely agreed upon as the best possible option.

On one hand, the legal system exposes both complainants and defendants to public scrutiny, and require serious financial and time commitments on both parts. On the other hand, procedures outlined in policies like that of Columbia’s—which requires a full hearing and a panel of faculty to serve as jury—are equally difficult, open to accusations of bias, and disruptive within an academic context.

In all three cases in which complainants threatened legal action—those of Bekaert, Jessel, and Harris—the University brought in JAMS, the largest private arbitration and mediation service in the country, court documents and lawyers confirmed.

Ravina’s gender discrimination lawsuit, which reached federal court, is the exception—not the norm—in Title IX cases. Though she underwent a JAMS mediation, she and the University ultimately failed to reach a resolution in the days allotted, court documents show, leading to a months-long trial and more prolonged dispute. Bekaert was not involved in the JAMS mediation.

In Jessel’s case, JAMS was offered as a route to resolution once the complainant threatened legal action against the University. In Harris’ case, JAMS was offered once a lawsuit had already reached court—but a successful JAMS mediation ensured that the case would go no further.

The results of successful mediation through ADR are apparent in the Harris case, court documents show. The first meeting was scheduled for Dec. 4 to 5, 2017, and the parties reached an official settlement—involving terms of agreement for the complainant, faculty, and University—around 10 days later, by Dec. 15, 2017. Three days later, on Dec. 18, the New York Times reported that Harris had retired.

The case was effectively decided in a matter of days.

Continue reading Part 3, in which a community grapples with how to respond to sexual misconduct if no one—even the complainants themselves—understands the full picture of how a tenured faculty member might face sanctions.

News editor Karen Xia can be contacted at karen.xia@columbiaspectator.com. Follow her on Twitter @xia_karen.

Senior staff writer Khadija Hussain can be contacted at khadija.hussain@columbiaspectator.com. Follow her on Twitter @hussainkhadijaa.