BRIEFING FOR A DESCENT INTO HELL

Cornell’s experience is, to be sure, merely an instance in a larger trend. On campuses throughout the nation, “gender issues” have eclipsed all the old activ ist causes. Cornell’s nervous administrators, too, have their counterparts thro ughout higher education. But Cornell activism seems a bit more flamboyant and i ts administrators a bit more cowed and craven. As in the 1960s — when Cornell was one of the rare places where activists finally took to guns — the latest C ornell s tory gives some telling examples of how dangerous things can get when university officials try to play it safe.

So, in recent years, Cornell officials have allowed feminist activists to define “sexual harassment” in startlingly broad terms. I was made to understand this at the outset of this trend, when I gave a lecture in my constitutional law course on “privacy” cases, including the 1987 Supreme Court ruling refusing to strike down Georgia’s law against sodomy. In response to a question, I ventured a few words in explanation of why voters in Georgia or elsewhere may support such laws even though they are never enforced. Within two weeks I received a letter from a feminist colleague, an officially designated “sexual harassment counselor,” informing me that some unnamed students had complained that my remarks were insulting to homosexuals. She notified me that, on the basis of the students’ account of what I had said, she had concluded that my lecture had created a “hostile work environment” for students and was therefore within the campus definition of sexual harassment. Fortunately for me, no punitive action was taken. But I was put on notice: I was under surveillance.

This can be a somewhat unnerving experience. Four years ago, the faculty of Cornell’s College of Arts and Sciences (or rather the activist rump of the faculty that rallies for official meetings) adopted a set of procedures for dealing with complaints of harassment. To reassure complainants against retaliation, these procedures allow complaints to be stored in a “locked file” by faculty harassment counselors, with no notification of the accused professor. Then at some later time — which may be quite a few years later, as there is no statute of limitations–the faculty harassment counselors may activate these complaints, along with others that may have accumulated, and slam the unsuspecting professor with formal charges based on a “long history” of “harassment.”

What is most remarkable about this system is that the harassment counselors will not reveal anything about the files to a professor inquiring about his standing, not even whether the harassment counselors do have files on that nervous professor. The FBI is required to share its files with citizens who inquire about what information it has gathered about them. But Cornell’s faculty harassment counselors maintain that even abstracted summaries of their files might be used by devious professors to figure out which students had complained about them and then retaliate against those students.

Quite a few professors worry about what may be in those files. One male professor was badgered so persistently by a mentally unbalanced female student that he obtained a court order against her, requiring her to keep her distance. She then charged him with sexual harassment. No formal sanctions were imposed in the end, but he worries, understandably, about how this has been written up in the secret files. Another male professor, in a different department, was troubled by repeated sexual overtures from a female student who had signed up to write a senior thesis under his direction. The professor told her to find another adviser. She charged him with “sexual harassment.” Again, no punishment was levied, but how the episode was written up in the secret files is something the harassment counselors refuse to divulge.

The response of administrators to all this has been true to form. They do not want to know. The dean of the faculty acknowledged that “an instructor’s concern that unanswered complaints were piling up in a locked box could create a chilling atmosphere for an expression of views deviating from the accepted norm.” Nonetheless, he expressly declined to endorse the right of professors to be informed about the existence of secret files (even with names of complainants and details of complaints withheld) because, given even such limited openness, “a putative victim might well be inhibited from depositing a complaint . . . for lear of retribution.” Even this carefully balanced statement was held to disqualify this gentleman from presiding over faculty meetings at which the college harassment procedures might be discussed. Don Randel, the dean of the Arts College, was even more cautious. When he received letters protesting the excessive secrecy of the locked files last year, he declined to respond at all. That is the true Cornell spirit. This summer, Randel was promoted to provost of the University.

But if administrators are indifferent, the faculty has discovered how dangero us it can be to be charged with “harassment” in the current climate. Consider t he case of James Maas, who was charged and found guilty under the Arts College procedures. Maas is an immensely popular professor whose introductory course in the Psychology Department draws some 1,500 students each year. An award-winning researcher on sleep disorders, Maas makes instructional films on the subject. T wo students who worked o n his film crew complained to a harassment counselor that they found his manner bothersome. The harassment counselor rewrote their complaints to make them sound more severe. Two other students were recruited to fill out the charges. With one exception, all the charges amounted to complaints about excessive displays of affection — social hugs and kisses, bestowal of gifts. Maas, a man in his 50s, still has the warm manner of an earlier, more innocent era. No one disputed the fact that Maas has displayed the same affectionate manner toward hundreds of other students over the years, none of whom had found it offensive or threatening. Indeed, the complainants themselves had not told him that this behavior was offensive to them. All of the incidents in question took place in front of witnesses, either his own wife or the parents of the students or other students, and none of the other witnesses saw anything amiss in his conduct.

There was one other complaint, however, regarding an alleged incident from seven years in the past. A student claimed that Maas had deliberately “touched” her breast on one occasion at that time. Maas vigorously denied the charge, and the faculty Professional Ethics Committee acknowledged that there was no evidence to confirm it. Nonetheless, the Ethics Committee, dominated by faculty members with special concerns about “harassment,” found that this incident, combined with displays of affection, suggested an “egregious . . . pattern over time” — a pattern of one episode. Maas was given a hearing but not allowed to have a lawyer represent him during the hearing, nor to be present when his accusers were questioned (on the grounds that this might upset them). The harassment counselor who presented the case demanded that Maas be fired, but the formal penalties were successively whittled down to a salary freeze and an admonition against giving gilts to his film crews.

But the real penalty was the devastating publicity, which was leaked in bits and pieces to the campus newspaper (and then picked up by the national media). It was said that Maas had been charged with “breast grabbing” and other offenses and found guilty bv a faculty committee. The Cornell Sun demanded that he be fired and expressed outrage that he was still allowed to address alumni gatherings since he had been found “totally unfit to represent the university.” This fall a feminist group posted notices protesting that Maas had been found guilty of “sexual assault” and then given a slap on the wrist. The university made no effort to correct the record. Maas was on his own.

Well, not quite. The American Association of University Professors criticized the procedures used against Maas as a “denial of academic due process.” With the aid of the Washington-based Center for Individual Rights ( with which I am associated), Maas filed a lawsuit, seeking $ 1.5 million in damages. Cornell responded to both challenges by claiming that it would have accorded full due process under established university grievance procedures if “severe sanctions” had been contemplated. The procedures adopted by the Arts faculty and employed in the Maas case were characterized as merely ” investigative” and quite sufficient in a case where no serious penalty had actually been imposed.

This has turned out to be the university’s first line of defense whenever its harassment watchdogs get out of hand. Two subsequent cases illustrate the pattern. In April, James Aist, a professor of plant science in the Agriculture School and a conservative Christian, posted a notice on a campus bulletin board filled with offers to sell computers, motorcycles, typing services, and so on. Aist’s notice was unusual: It offered counseling for individuals seeking to be “cured” of their homosexuality. A group of gay students took offense and staged a sit-in at his office. The university promised to investigate Aist. Students filed charges that his notice had subjected them to discrimination on the basis of sexual orientation, to sex discrimination, and even to religious discrimination — the latter on the grounds that Aist was ” trying to impose his religious views about homosexuality” on them.

The campus Office of Equal Opportunity spent seven months ostentatiously ” investigating,” busily questioning the professor’s colleagues and students while refusing to tell him, for much of that period, what the precise accusations against him were. The office would not let the matter rest with the undisputed fact that Aist’s poster had appeared in a “public forum.” As an assistant dean explained, “Aist may have a right to free speech but the students have a right not to be offended.” The investigation was called off only when Aist hired a lawyer and threatened to sue. But, as Cornell administrators saw it, no harm was done by months of intimidating ” investigation” for expressing a politically incorrect view: No formal sanctions were imposed in the end.

In the most recent case, four Cornell freshmen were found to be circulating an e-mail message, “75 Reasons Why Women (Bitches) Should Not Have Free Speech.” It was offensive and sophomoric, but then the authors were not even old enough to be sophomores. It was not obviously more offensive than lists circulated by women (“10 Reasons Why Cucumbers Arc Better than Men”). And this lockerroom humor was circulated only to friends of the four students. But someone began sending it around to a wider circle, and the list soon spread across the country through the broadcast power of the Internet. Cornell was deluged with indignant protests from feminists at other colleges. The university’s vice president for public relations issued a statement piously denouncing the students for having ” damaged Cornell’s good name” and assuring the public that the matter would be thoroughly investigated.

The ensuing investigation by Barbara Krause, the campus judicial administrator, determined that the students had not actually broken any rules. Their communications were private. They had not sent them with intent to harass but with intent to entertain and no one who received the list from them had actually complained. The complaints came from third parties. Fortunately, a Solomonic decision was reached. The JA issued a statement that the students were not technically guilty of breaking any rules but simultaneously announced that these students had “volunteered” to attend “counseling” on “rape education” and “gender roles” and to perform 50 hours of community service to demonstrate their “sincere regret.” Privacy? Free speech? No problem! The students “volunteered” to be punished. And, as the JA explained, “Cornell does not have a hate speech code.”

Apparently somebody in the upper reaches of the Cornell administration decided that matters were getting a bit out of hand, though. In late November, Provost Randel — who, as Arts College dean, had insisted he did not “believe the [Arts] Procedures to be fundamentally flawed” — presented new university-wide wide procedures, that would supplant those of the Arts College and other units at Cornell. The new procedures contain the same encompassing definition of sexual harassment (including “verbal conduct” that “has the effect of . . . creating an intimidating, hostile or offensive learning environment”) and offer no protection for classroom speech — but do offer a specific disclaimer to authorize “sexual behavior” between faculty and students which is “welcome and consensual.” Administrators know their priorities. There is even less due process for accused professors in these procedures, which allow penalties to be imposed whenever there is “reasonable basis to believe” that harassment has occurred. But all “investigation” will now be removed from faculty harassment counselors and centralized in the hands of the Office of Equal Opportunity-those expert officials who did so well in the Aist case. And all final authority will rest with the deans. What administrators care most about is keeping control away from faculty feminists who don’t pay enough attention to public relations. When faculty members in the Arts College proposed to abolish the locked file system, the dean insisted that files could not be destroyed but must instead be turned over to administrators. The new procedures do not mention secret files but also do not disclaim willingness to consult the old ones. And like the old Arts College procedures, these two have already been criticized by the American Association of University Professors as a threat to academic freedom.

Tenured professors, beset by overwrought harassment counselors, may not win much sympathy from people out in the real world, where employees can be fired at any time for offending the customers or offending fellow employees. But other employers must worry about demoralizing their employees, if only for the sake of productivity. University administrators, whose “product” is so hard to define, worry much less about fairness to their faculty employees; they seem altogether preoccupied with appeasing the loudest activists on campus. In universities, where due process and free speech ought to be of special concern, they can be cheerfully forgotten in the latest ideological struggle and the latest administrative maneuver to cope with it.

It is hackneyed to say that universities are training the next generation of American leaders. But it is still true. Based on my experience at Cornell, I would say the message that the next generation is absorbing will not be radical feminism — despite the vast resources devoted to teaching and propounding it. Instead, today’s students are likely to retain the cynical lesson that when confronting zealots, it is best to duck or perhaps to rnaneuver — but never to draw a line or stand on principle.

When elemental principles have no authority in universities, what future will they have in the country over the long run? Never mind, say today’s univers ity officials: Just keep those tuition checks and government subsidies rolling in. A university is an expensive business. And please, please don’t sit in at the administration building on campus or else we might have to throw a few more scholars and teachers to the wolves. We would like to avoid that — if it isn’t too costly.

Jeremy Rabkin teaches government at Cornell University.