Office of Rights and Responsibilities
Report for the two-year period 1999-2001

Prepared by Sally Spilhaus, Advisor on Rights and Responsibilities – August 2001

Introduction

The past two years were the most active and demanding of any since the Office of Rights and Responsibilities opened in 1996. In 1999/2000, in addition to her usual responsibilities, the Advisor agreed to serve as acting Ombudsperson for eight months while the position was temporarily vacant. This doubled the usual caseload and required a major effort to bring her knowledge of academic rules and regulations up to a level where she could respond effectively to inquiries. It also involved a temporary move into the Ombuds Office space. However, the experience was rewarding, and the knowledge gained invaluable.

The events of the year 2000/2001 consumed much time and energy. The primary event was the conflict that arose on campus when the Palestinian/Israeli situation became critical in the fall of 2000. The situation was made more challenging by the activities of the Concordia Students Union (CSU), which was active in the conflict. Adding to the load was a 50-per-cent increase in the number of cases and the disruption caused by the move into shared office space with the Ombuds Office.

This report is somewhat different from previous reports, in that it concentrates on the Code itself, and the role of the Advisor, which have received unprecedented exposure as a result of the above-named events in the past year. This prompted a reflection on the scope and limitations of the Code, in illustration of which certain cases and events were singled out. These reflections are timely for several reasons.

First, the Middle East conflict and student activism on campus have brought the Code and the Advisor’s role into an unaccustomed limelight, which in turn has raised questions about the Office of Rights and Responsibilities. Since it appears that these events will be ongoing in the upcoming year, it is well that the community should have a clear understanding of what the Office of Rights and Responsibilities is supposed to do. Second, these reflections should also help to prepare the ground for the upcoming first cyclical review of the Office of Rights and Responsibilities. Last, a current project to make much-needed amendments to the Code has been stalled. It is hoped that this report will help move the process forward.

The Year 1999-2000

Despite the temporary move into the Ombuds Office from July 1999 to February 2000, there was no reduction in the number of cases in 1999/2000. It was an average year in terms of both the number and the type of cases. Two of these cases stand out, one because of questions it raises with regard to Code procedures, the other because of its absorption of time and energy and its illustration of the Code’s procedures for dealing with behaviour which is assessed as potentially dangerous.

Student complaints against faculty: procedural questions
The first case, a protracted one involving allegations of sexual harassment against a faculty member, illustrates some long-standing concerns with regard to the Code’s procedures when students make complaints against faculty members. These concerns have been discussed with members of the senior administration, who are not unsympathetic. However, the nature of the university’s contractual relationship with employees makes it difficult to find a solution.

When complaints are made against employees, the Code defers to the collective agreement, which supersedes all other regulations or policies when determining whether there is misconduct which might entail disciplinary measures. This is different from the Code’s procedures for adjudicating complaints made against students in which the matter is heard by a panel of the Student Hearing Board, before which both parties have an equal chance of presenting their case. Up until recently, the hearing process has worked well. The student panelists take their work very seriously, and the fact that a volunteer lawyer from outside the university chairs the hearing seems to inspire confidence that the process will be fair. The chair does not vote, but he or she does ensure that the hearing is orderly and that the evidence is weighed correctly. Furthermore, either party to a complaint has the right to appeal on certain grounds.

When the complaint is made against a staff person or a faculty member, however, the matter is forwarded to the authority who is responsible for discipline under the collective agreement of the person complained against. The procedure is particularly problematic when a student makes a complaint against a faculty member. It should be emphasized that the concern relates to the process, which has some disadvantage for both parties to the complaint, and not with the prompt and professional manner in which deans and occasionally the provost have responded to these complaints.

First, there is no hearing as such, so neither party has the opportunity to cross-examine the other – they present their cases in separate interviews. This is certainly easier for the student, but it denies the faculty member the opportunity to meet his or her accuser face-to-face. Secondly, in the case of a complaint against a full-time faculty member, if the dean is of the opinion that disciplinary measures should be considered, the case is forwarded to the provost. The student is therefore obliged to repeat his or her story all over again. It may not stop there: various other steps may prolong the process beyond the student’s sojourn in the university. Further, there is no appeal for the student, whose right to internal recourse is exhausted when the authority makes a decision. The faculty member, however, may grieve and even go to arbitration, which step might still require the participation of the student, with no potential benefit to him or her.

It is never easy for a student to complain against a faculty member. So far, the only such cases filed under the Code have concerned allegations of sexual harassment. The great majority of complainants come forward not because they seek a remedy for themselves, but because they don’t want other students subjected to the behaviour in question, and feel that only a formal process can accomplish this end. They are often disillusioned, however, as the process unfolds, and finally conclude that it was not worth it, even when they “win” the case. Finally, for those who have to handle such complaints, there is no step-by-step, university-wide procedure to follow. Understandably, they seek counsel from the university lawyers, and in the process, the focus becomes avoiding future legal action; it is now the university’s case, rather than the student’s, whose interests are no longer the focus of proceedings.

Managing potentially dangerous behaviour: a case illustration
Although cases that fall under the section of the Code concerning urgent measures (articles 71-77) are not frequent, they may last for months. This is particularly true in situations where behaviour becomes disruptive because of a mental health problem. The case selected here dominated the year 1999/2000 and involved many members of the community. It was an unusually disturbing case, because of the individual’s apparent inability to understand the impact of his behaviour or the response to it. From the point of view of the Code, however, it was a successful example of how the system for managing potentially dangerous behaviour works. Part of the challenge in these cases is to balance the rights of the individual with those of the community: when community safety is in question, if the university is going to err, it should be on the side of caution. However, the Code sets out procedures that protect the individual from arbitrary action and ensure that decisions are based on the best information available.

In this instance, as frequently happens, the case management team had no medical diagnosis to guide it, and therefore had to base its strategies on informed guesswork. While confidentiality precludes describing the details of the case, it can be reported that it involved a violent incident, which, following the procedures of the Code, resulted in an emergency suspension and a charge of violent and threatening behaviour (article 18). The subsequent hearings to deal with the charge were painful for all concerned, but chaired with compassionate firmness by the Code’s volunteer lawyer and adjudicated with impressive thoughtfulness by the student jurors.

The individual, however, was convinced that he had been unfairly treated, and embarked on a lengthy campaign to have the case reviewed. For the remainder of the year and into the next, he visited numerous offices without prior notice, where his behaviour caused considerable uneasiness. The strategy in these cases is to set up a communication link with all those involved (or likely to be involved) with the case. The flow of information, both in and out, is then centralized through the Advisor’s office. This enables the case management team (which had been convened after the violent incident) to monitor the individual’s behaviour and review its strategy in the light of any change. The Advisor keeps everyone “in the loop” informed of the strategy and updated on any new developments. To the extent that it is possible to predict the individual’s actions or pattern of behaviour, the team can also plan for a variety of contingencies and prepare those “in the loop” to respond effectively.

This coordinated approach supports individuals who may be affected by the behaviour, helps to prevent new incidents and if all goes well, contains the situation until it is ultimately resolved. Cases involving mental health problems, however, may be expected to resurface from time to time in response to the fluctuations of the illness. One unavoidable effect of the system is that the identification of a situation as one that poses a potential risk to others tends, at least initially, to raise anxiety among those involved. The challenge is to maintain vigilance while at the same time reassuring those affected. Most university members who have been caught up in one of these cases have expressed their appreciation of the support they received and for the sense that they were included in the management process.

Although it is never possible to guarantee that someone will not resort to violence, Concordia’s system does help to make case management effective. For the “safety net” to work properly, however, it is vital that everyone who is involved in any way with the case cooperates by sticking to the response strategy and reporting any new developments. Any safety net is only as strong as its weakest link.

The Year 2000-2001

The second year of this report entailed almost a 50-per-cent increase in the number of recorded cases, which is unprecedented in the life of the Code. The increase was mostly in complaints of harassment, discriminatory harassment, discrimination and theft or vandalism. Some of these cases arose out of the Middle East conflict which erupted on campus, and which, together with increased activism by the CSU, dominated the second year covered by this report. In order to explain the Office’s role in these events, a summary of the activities pertinent to this report follows.

Conflict and activism
When the Palestinian/Israeli situation flared up in the early fall of 2000, echoes were felt at Concordia, which has large Palestinian and Jewish populations, many members of which have very close ties with the region. As the conflict heated up so did support for, or opposition to, the events increase among the wider community, both inside and outside Concordia.

The conflict played out through various activities, some of them occurring on campus, while others, like protest marches, spilling out into the streets of Montreal. On campus, information tables were set up on an almost daily basis, displaying not only written materials but also film and video footage of a graphic nature. Tensions rose and complaints started to be heard: these were either from students, staff or faculty, and directed mostly to the Dean of Students’ Office or the Office of Rights and Responsibilities, or from members of the public and directed to senior administrators. As the on-campus conflict escalated, so did an underlying climate of fear that the situation might erupt into violence.

Some of the complaints were about the content of the materials that both sides displayed, which were considered to be inaccurate, offensive, or discriminatory. Others were about incidents of racial or ethnic harassment – students made offensive comments to each other in the heat of a demonstration, or as they passed each other in the corridors. Some complaints of theft or vandalism were also received when students alleged that someone from the other side was seen tearing down their posters. There were allegations that Concordia had become hostile to the Jewish community, and counter-allegations that Arab and Muslim students were being subjected to systemic racism.

The CSU was involved in these events throughout the year. The charge of systemic racism against Arab and Muslim students was brought forward by the CSU who called for a commission of inquiry into the matter, on the grounds that existing structures to deal with complaints were ineffective or that students had lost faith in them. Controversy arose over the CSU’s decision to act on a motion calling for a general assembly to debate UN resolution number 242, concerning the occupied territories. The assembly was finally held on November 28, and took place without incident although the atmosphere was tense. There was also tension between the CSU and the student newspaper The Link over the paper’s editorial decisions, which started with the paper’s coverage of the misappropriation of CSU funds and continued with the Middle East crisis. This tension spilled over into allegations and counter-allegations of harassment and intimidation.

The response to events
From the start, the Advisor and the Dean of Students worked in close cooperation, in order to develop a consistent approach to maintaining calm. Every strategy and decision was based on one basic principle, namely that freedom of speech must be protected, but that university members were responsible for exercising that right in a civil manner. The Rector gave his full support to this approach and insisted that complaints be channelled through the university’s existing structures, refusing to respond to vague or generalized allegations. At the same time, he made it very clear that personal harassment or acts of a racist or ethnic nature against individuals, or threatening or violent conduct would not be tolerated.

As the situation became more polarized, the main tactic was to encourage both sides to maintain an open dialogue. Meetings were organized between representatives of participating groups, and eventually a mediator was brought in to facilitate the process. A primary goal was to assist the parties in developing their own guidelines for the type of materials that were being distributed at information tables. From the outset, both the Dean and the Advisor took a firm stance against being asked to censor these materials, on the grounds that they were political opinion pieces. It was not always easy to explain to students who were extremely upset at what they considered the offensive nature of these materials that to be offended was not the same as suffering discrimination. They were encouraged to voice their own opinions in response, as publicly and frequently as they wished. Although some progress towards setting guidelines was achieved at the beginning, the attempt broke down as positions became more polarized.

Meanwhile, complaints were increasing. The Office of Rights and Responsibilities received 15 complaints (out of 167 for the year) arising out of these events. Six of these alleged verbal harassment of a racist or ethnic nature: In five of these cases, the complainant was either unable to identify the perpetrator, or recognized the person by sight but was unable or unwilling to obtain a name. It was therefore not possible to process these complaints. The fifth involved an allegation of personal harassment in response to which an attempt at informal settlement was attempted. When this failed, the complainant indicated an intention to file a formal complaint, which the Advisor refused on several grounds. This decision is currently under appeal.

Three complaints were about written opinion pieces – two concerning the content of materials used at information tables and one concerning an article in The Link. The Advisor ‘s response was that these materials might offend some people, but they did not constitute discrimination as defined by the Code and that its proceedings could not be used to censor opinion.

A faculty member who had received anonymous hate messages by e-mail after publishing an op-ed piece on the Middle East situation was given advice as to how to pursue the matter, although there was no evidence that the perpetrator was a member of the university.

A student complained of disrespectful treatment by a professor, which was perceived as racially motivated. The outcome of the ensuing formal investigation by the appropriate authority found disrespect but no racist intent. Letters of apology were exchanged.*

A student complained of having an article about the Middle East conflict refused for publication by The Link, which decision was felt to be discriminatory. The response was that the Code does not have jurisdiction over the internal affairs of The Link, which is a separate legal entity from the university.

Several students complained that their posters for an event were torn down by “the other side.” They had also complained to the Dean of Students. This led to discussions with both sides and the attempt to set up guidelines as described above.

A student complained that the Dean of Students had been racist in allowing a Jewish counter-protest to remain in the Hall lobby during the CSU’s general assembly. The student was informed of the procedure to use in order to make a complaint and referred to the Vice-Rector Services. The student did not pursue the matter.

A student complained that his failure to receive graduate grants was because of the racist attitude of an employee. Investigation revealed that the relevant decisions were made by a committee, not the employee, and that the student had failed to meet the criteria of the granting agencies.*

(*These two complaints are mentioned here because in both cases the allegation was that the racism was anti-Arab in nature.)

In addition to the above, the Advisor received approximately eight incident reports, forwarded by Security, all of which were followed up in case any further action was required. Considering Concordia’s large population, the actual number of complaints was relatively small. Although letters to the student newspapers at the time reveal that students not actively involved in the conflict were starting to become irritated by what they considered excessive political activity, most of the complaints that came to these offices were from committed participants in the conflict. The silent majority, for the most part, remained silent.

As the above list of complaints reveals, many of the complainants had to be told that the Code could not respond to their complaints. However, the Advisor took the time to listen to the students’ concerns, to acknowledge their sense of outrage at events, to discuss the broader situation with them, and to explain the scope and limitations of the Code. An effort was made to differentiate between the expression of an opinion, however offensive to some, and personally targeted harassment. The university’s repugnance for racist attacks was emphasized. Questions of jurisdiction were explained. Some were encouraged and went away feeling supported and with a better understanding of the issues. Others were not satisfied and expressed their frustration that the university would not “do something.”

The Code of Rights and Responsibilities and politics
The above information has been provided in some detail partly for reasons of transparency; given the seriousness of the events, the community deserves to know what was done in response. However, the main point is to illustrate the relative powerlessness of the Code to intervene in an emotionally charged, highly political situation. This is not because the Code is seriously flawed. Rather, it has to do with the expectations of the protagonists in the conflict. Feeling passionately justified in their cause, they are not in search of an impartial process. Perhaps without even being aware of it, they want the authorities to come down on their side, to use their powers to deal with the other side. In the heat of emotion, they have difficulty accepting or understanding that the Code and the Advisor are, and must remain, essentially disinterested, and make their appeal to the person, rather than the officer. But the incumbent, who surely has feelings and opinions of her own, must resist the impulse to respond to such an appeal.

The bottom line is that the Code’s area of jurisdiction concerns misconduct against persons or property and the Advisor must accept or reject complaints accordingly. If a complaint does not fit the definitions or the jurisdiction of the Code, it should be re-directed if possible, or simply declined. The Code should never be massaged to respond to partisan complaints, or amended to respond to partisan interests.

Student Hearing Board procedure
The procedures of the Code are being put to the test in yet another way by political action on campus, in this case those regulating the Student Hearing Board. Although the case that has prompted these comments is still ongoing, and as such would not normally be subject to comment in a report of this nature, the questions that it raises about the Code’s procedures are relevant now. The intent of the following observations is to examine the scope and limitations of the Code itself, not to comment on the case. Only that information which is needed in order to comment on the Code has been provided. Since the case is a matter of public record, the normal requirements of confidentiality do not apply.

A complaint was filed in the winter term against two students who were alleged to have mounted a protest against the displays of the Canadian Forces and the Canadian Security Intelligence Service (CSIS) during a recruiting fair held on campus. Normally, hearings under the Code take two or three hours at most, because the complaints are not complicated and the evidence not voluminous. In this case, nothing in the documentary evidence suggested that the hearing would not follow the usual pattern. There were two public incidents and eyewitnesses willing to testify as to the identity of the perpetrators and the nature of the incidents. The complainant had to prove that the persons charged were indeed the perpetrators and that their actions met the criteria of the definitions under which the complaint was filed.

However, the respondents chose to mount a purely political defence. They attended the first session accompanied by a group of supporters who pressed for an open hearing, to which the complainant ultimately agreed. Two lengthy sessions took place during the winter term, of which the first was taken up entirely with pre-hearing motions made by the respondents. At the third session, which was ultimately suspended due to the illness of the chair, the respondents were accompanied by a self-described “anarchist band” consisting of several masked individuals carrying black anarchist flags and pounding on drums. At the time of writing, it has not been possible to schedule the next hearing and the incidents at issue are now six months distant. In the context of a university, through which the majority of the population passes relatively quickly, this is a long time.

The volunteer chair, a lawyer external to the university, gave the respondents liberal opportunity to present their defence, much as a court of law would do. He also did what he could to keep the process moving forward, and the atmosphere fair and orderly. However the chair of the Student Hearing Board does not have the authority of a judge to enforce rulings or impose order.

A hearing is not a judicial process. It is an administrative process based on the principles of natural justice, which enables the university to deal with allegations of student misconduct and to allow students a fair chance to defend themselves before a panel of their peers. For the process to work, there must be some willingness by all parties to abide by the procedures. When a case takes on a political flavour, and the Code itself and the integrity of the officers who implement it are challenged as a defence strategy, the process starts to founder.

Again, this is not necessarily a flaw in the Code which can or should be corrected: the purpose of these observations is simply to draw attention to the limited ability of the Code to intervene in any and all situations that might arise on campus. It is only one instrument available to the university.

The role of the Advisor
The events of the past year were also a test for the Advisor, both personally and in terms of her role. As the situation became more polarized, so did the demand for action become more vociferous. One of the first casualties of extreme polarization is trust: in this case, trust in the university, its officers and its rules and policies. They are perceived as functioning together en bloc, in obedience to other interests, the protection of which require the suppression of free speech and political protest (suggesting a capacity for tactical planning that would be flattering were it not so far from the reality).

This phenomenon is not new in the history of the world, and there is no reason why things should be any different at Concordia. Knowing this, the officers soldier on, but this does not mean that it is not taxing and disheartening to be constantly in a state of negative reaction. It is particularly hard when in addition their integrity is publicly impugned. Added to these effects at the time was the constant concern that there would be violence, and the cautioning impact that this possibility had on decision-making.

This was the context in which the Advisor endeavoured to fulfil her mandate during the year. It was not only challenging, but it also created expectations that the role could not fulfil. Most members of the university are probably not familiar with the Advisor’s role until and if they need assistance. In the light of the current context of political conflict on campus it is perhaps as well to refresh the community’s understanding of what the Advisor is supposed to do.

The Code of Rights and Responsibilities separates the advising function from the adjudication of complaints. The Advisor does not judge, her functions are impartial. However, impartiality does not imply that she should not assess the nature and seriousness of the presenting problem or complaint, or use her expertise to assist the complainant to choose the most effective method of remedying the problem. Further, she has a specific obligation to determine whether a given complaint falls within the jurisdiction and definitions of the Code and whether it is “trivial, frivolous, vexatious or made in bad faith.” (Article 23)

The power to screen complaints is a tricky one, and must be used advisedly. Determining whether something is frivolous or trivial, which in an everyday sense are somewhat subjective concepts, can be a challenge. The Advisor must distance herself from any personal reaction, and apply instead the “reasonable person” test when making the determination, a concept that is not always understood. This discretion is most difficult to apply when a complainant is politically motivated or seeks revenge, both of which occasionally occur. Complainants have argued on more than one occasion that there is a “right” to make a complaint, that if they feel harassed or discriminated against, then they are, and a complaint must proceed. This is not so. Community members may use the Code to complain about misconduct if their complaint fits the Code’s criteria. The Advisor must apply those criteria to the best of her ability, but this responsibility always leaves her vulnerable to accusations of personal or political bias, if not incompetence. However, her decision is not final, it may be appealed through the specified process.

The role is most clearly defined with regard to the reception and processing of formal complaints and the steps to be taken when reports of threatening or potentially dangerous behaviour are received. In practice, such cases represent only a fraction of the total (although they may take up a disproportionate amount of the Advisor’s time.) The majority of cases fall into the informal category and here the range of assistance or advice that may be provided is limited less by procedure than by the experience and skill of the incumbent.

The present Advisor has developed the approach of first asking the complainant to articulate what would remedy the problem for him or her, and then working back through the range of available options to try and determine which method of resolution would be the most likely to achieve the desired outcome. This approach enables the complainant to see more readily that a formal complaint, which is always adversarial, may not produce the desired result in every case. He or she might win the battle but lose the war, especially if the respondent is a co-worker or classmate. The humiliation and resentment of the “losing” party is likely to re-fuel the old conflict, which will probably find new and perhaps more subtle channels to assert itself. A less adversarial approach may mean that the complainant has to take some responsibility for resolving the problem, but can in the end be much more rewarding.

For example, when a student, after coaching from the Advisor, successfully confronts a faculty member who has been flagrantly rude, and does so in such a way that the faculty member is not defensive and even apologizes for the behaviour, the student has not only resolved the complaint but has learnt a valuable skill for the future. When an employee succeeds in resolving a long-standing conflict with a fellow worker through successful negotiation, the workplace is improved both for the antagonists and those around them. When a professor seeks advice concerning disruptive behaviour in the classroom, and then deals with it successfully, he or she has not only solved the immediate problem but will be more likely to prevent future ones.

Needless to say, not every attempt results in a successful outcome, but enough do that many consultations are the result of someone being referred by a former “satisfied customer.”
Not every situation lends itself to this informal self-help approach. Allegations of serious misconduct, or behaviour which threatens the safety of others, or some situations where the respondent is in a position of authority over the complainant, should always be dealt with through a formal process, so that individual rights are protected, fair treatment ensured and misconduct appropriately sanctioned.

The final characteristic of the role to be noted is the independence that flows from an arm’s length relationship with all other administrative structures. This independence is necessary to protect the role from undue administrative influence or control. This independence, together with the advisor’s discretionary powers, must be tempered by accountability, both personal and structural. The former depends on the integrity of the incumbent; the latter is prescribed in the Code, through the right of users to complain about unsatisfactory service and cyclical reviews of the Office of Rights and Responsibilities.

Conclusion

The present Advisor has always conceived of the Office of Rights and Responsibilities as a community resource, that is, a place to obtain guidance, assistance and support. This view is in contrast to the common misconception of the Office as some kind of community police station, where the staff lie in wait for malefactors. In this season of discontent, it is important to emphasize once more the positive aspects of the mandate, which is, to quote the Code’s preamble, to help keep the university environment “safe and civil.” It is even more important to clarify that safety and civility do not exclude dissent, however harsh. Without dissent, there is no academic life. To take the issue further, it must also be said that safety and civility do not exclude the likelihood of being offended on occasion. The reference is, of course, to offensive opinions, and not offensive behaviour. In fact, the view from this office is that if a student or employee leaves the university without ever having been offended by an opinion, the university is probably falling down on the job.

This report wishes to re-emphasize its view that the Code of Rights and Responsibilities is not a panacea for dealing with every form of disruption, conflict, misconduct or threat on campus. It is important that it not be subjected to any modification that might change its essential nature as an unbiased, administrative process free from interference from any quarter. The amendments which are being proposed in the current project initiated by our General Counsel are of a “housekeeping” nature. Every good policy, if it is to be responsive to the changing structures and habits of its home institution, needs regular dusting and polishing. The Code of Rights and Responsibilities is no exception. Amendments need to be made soon, so that the Code works as well as possible for the benefit of all the community – it is important that the project not be held up for partisan reasons.

In closing, the Office of Rights and Responsibilities would like to encourage members of the university who may have comments, questions or concerns about this report or any other aspect of its operation, to write, call or visit. Your contribution is welcome.

Sally Spilhaus
Advisor on Rights and Responsibilities, August 2001