Kalish: Legitimacy Of Process

Nov 10, 2015

A lot’s been said about the case of Norm McAllister, the Vermont Senator arrested in May for sexual assault. Although press coverage died down over the summer, it re-emerged in earnest when McAllister made it clear he would not resign ... and that the Senate would have to decide whether or not to expel him from his post.

As others have explained, Chapter 2 of the Vermont Constitution would permit the Senate to oust McAllister. And it seems they’re inclined to do so. The trick, as many have noted, is figuring out how.

The Senate has never expelled a member and it has no process developed for doing so. All agree such a process must include notice, some kind of investigation, hearings, and an opportunity for self-defense. However, what these elements might look like is far from clear, especially in a situation, like this one, when there’s a pending criminal case.

In hearing these conversations, I can’t help but think about their parallel within the academic world.

In the past handful of years, universities across the country have come under increased scrutiny for not doing enough to combat campus sexual assault. In January 2014, the White House launched its Task Force to Protect Students from Sexual Assault. By that spring, 55 colleges and universities were under Title IX investigation for the way they handled sexual abuse complaints.

Universities were quick to respond. Many hired administrators whose explicit job was to address Title IX compliance. Schools also revised their procedures for responding to and processing sexual assault complaints.

But many of these newly drafted policies drew fire. In a much-publicized statement, 28 faculty members from Harvard Law School argued that Harvard’s new protocols violated basic due process rights for the accused. They also noted the inherent conflict of interest created by having the institution’s Title IX compliance office handle all key elements of this process.

Schools face an extremely difficult situation. They’re not criminal law enforcement. They’re institutions that must protect their community members and that have their own rules for community membership. And, like the Vermont Senate, these institutions have important work that must be able to proceed effectively, without substantial disruption and detriment to those they serve.

The legitimacy of the Senate’s actions won’t turn on McAllister’s innocence or guilt. Legitimacy will turn on process. And the difficulties universities have faced are instructive.

To expect that any institution will be able to craft a perfect procedure under fire is probably more than we can expect. But we can demand thoughtfulness and care.