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[P]
Universities as judges: the repercussions drag on.

By elenchos in News
Mon Jun 04, 2001 at 01:52:23 PM EST
Tags: etc (all tags)
/etc

Another chapter has been written in the sordid and confusing tale of Gonzaga University's legal battle with a former student over the alleged violation of the student's rights, in a case of suspected rape and how the school handled it not as a police matter, but as a question of teacher certification. This round goes to the former student, Ru Paster, as the Washington State Supreme Court on June 2nd reinstated a 1997 jury's $1.15 million award against Gonzaga, which had been overturned by the state Appeals Court in 1999.

Schools like Gonzaga are pressured by many parties to keep criminal matters under wraps and handle them internally, rather than involve the police and especially the media. Parents, alumni, and of course, students, are happy to have minor alcohol violations referred to the school for disciplinary action, rather than going before a real judge, as would be the case with a non-student. Gonzaga's Women's Studies Club has charged that several alleged rapes were hushed up, with the victims being coerced by the school into not making police reports. Yet among some college women, there is the fear that rape victims will be abused by the criminal justice system, and so they have sought redress only within the academic world.



In this case, the pressure came from the state, which had passed a law that seemed to put the school in the position of gathering incriminating information about prospective teachers, but didn't ensure that they would investigate and judge these students fairly. So that in spite of the alleged rape victim's insistence that she had not been raped, and her refusal to contact police or press any charges, Gonzaga determined on its own, and without ever informing the student under investigation or involving any law enforcement agency, that there was enough reason to think that he had committed this crime. Gonzaga therefore thought it had cause to effectively end his teaching career even before he had graduated from college.

That's the simplified version, the details muddy things up somewhat more. Reading one of the above court rulings will give you pretty good understanding of what happened, who said what about whom, and when. Is it worth trying to sort all of it out? I think so, because there's a lesson to be learned in here somewhere, about what happens when we allow colleges to take on the roles of law enforcement and the judiciary.

The state Supreme Court ruling was reported in the June 2 Spokane Spokesman-Review, where you can read a general overview of what went down. According to the law as it was in 1993, Gonzaga felt the questionable and unproven (perhaps even unintended) charge of rape and sexual deviancy against Paster was enough to meet the state's definition of "serious behavior problems" and so to refuse to certify Paster's "good character" and so allow him to become a teacher. The alleged rape victim, Julie Peyton, refused to make a formal statement, and said at the trial in a videotaped deposition that she angrily tried to get Gonzaga to end their pursuit of the matter against Paster. Paster was told nothing until he went to begin his state certification, and then was only told why he was being denied certification after he hired an attorney. So Paster graduated, but couldn't teach, and won his suit against Gonzaga for violations of his rights and defamation.

On appeal, this was overturned primarily over the question of how much of a duty Gonzaga had to conduct a thorough and competent investigation before making its recommendation to the state. Paster's argument is that if they had done a real investigation, instead of sending a couple School of Education professors around to ask questions, that the charge would not have been proven. The jury agreed, but the Court of Appeals said Gonzaga's duty was only to the state and to meet the requirements of the law. They cite about nine pages of case law on this, which makes for fun reading if you can stay awake. The State Supreme Court actually agreed with the Appeals Court that "because Gonzaga had no duty to conduct an independent investigation, a claim of negligent investigation cannot be supported. The Court of Appeals properly reversed the judgment on John Doe's negligence claim." But they reinstated the original jury award anyway, because they said Gonzaga over-stepped the bounds of the law in over-zealously and recklessly investigating Paster's relationships and personal life, which was beyond the minimal requirements of the law to simply report whether or not any of Paster's professors learned in the normal course of their duties of criminal violations or behavior problems. Gonzaga has not yet made any statements about Friday's Washington Supreme Court decision. If you're wondering why Paster, a hotel employee in Southern California since his graduation, isn't teaching in some other state, I can only speculate that he would be required to report this incident to them as well and so is effectively prevented from teaching at all as long as he is tainted by these events.

Should universities be in the business of conducting criminal investigations? This seems to be what Gonzaga thought its job was, given Washington state law said back in 1993. This was a time of national hysteria over sexual abuse by teachers and there were demands for something to be done to keep child molesters out of the classroom. The recovered-memory movement was then in vogue, trying to convince everyone that the frequency of child sexual abuse was astronomical. Few questioned the validity of this mode of evidence-gathering save for lonely and courageous voices like Dr. Laura Schlessinger (this was back before she went off the deep end of religious fundamentalism). This media frenzy about child sex abuse was largely responsible for the ill-conceived legislation that led to Gonzaga's debacle with Paster. Date rape of course, was in the headlines, and at various schools around the country, campus grievance and discipline committees found themselves acting as judicial bodies, deciding if alleged rapists should be expelled from college as punishment for their crimes. In the absence of police detectives, college professors conducted the investigations. In place of emergency room personnel trained and certified to handle rape victims and gather evidence properly, school nurses played at the job and doubled as amateur crime labs. Well, I write about this now as if the whole sad adventure has ended, but that remains to be seen, which is why cases like Paster vs. Gonzaga are still worth paying attention to.

That, and the fact that a terrible injustice has been done. Either Paster is a real rapist, or he is innocent. If he is guilty, his punishment was only to be denied the opportunity to become a schoolteacher in the state of Washington. That's a pretty laughable sentence in comparison to the 7 to 20 years in prison that he might have received if he had been convicted in a real court of law. Or if Paster didn't rape anyone, an innocent man had his career ruined by a university that blindly followed a bureaucratic procedure handed to them by the State Superintendent of Public Instruction, with no reference to the larger social and legal context. Had Paster been arrested and convicted, Gonzaga would have had no trouble deciding then whether or not to recommend his good character to the state.

It seems obvious to me that if you have reason to believe that a felony has been committed, the only thing to do is call the police, even if you are a college professor, even if the suspect happens to be a university student. It could well be that Peyton really was raped, and she is so afraid of Paster that she recanted her original charge. That is one of the things that skilled police detectives are better able to handle than university staff. Many rape victims are intimidated by our criminal justice system, often having a justified fear that they will be harassed and abused by police and lawyers, but the answer is not to turn away from the system. Those victims are just as much owners of the law and the courts as anyone else, and they, and all of us, ought to be willing to make it work better for them, rather than abandon it for a far worse substitute.


Dennis Bratland
<elenchos>
English and computer science, Gonzaga University

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Universities as judges: the repercussions drag on. | 21 comments (14 topical, 7 editorial, 0 hidden)
Elenchos... (4.00 / 1) (#5)
by ti dave on Mon Jun 04, 2001 at 03:38:18 AM EST

I'm sitting here in Tacoma, and I can't recall if Gonzaga is a private institution or not. I think it probably is.

For a moment, disregard the "tar baby" argument of a private college that receives ANY public money demanding the same scrutiny of a purely public university.

If Gonzaga is private, not an element of the State, I don't see any mandate for them to conduct an investigation in to any wrong-doing.

Furthermore, I don't see how they could be considered qualified to conduct a criminal investigation. I seriously doubt Gonzaga is chartered to do so.

Actually, I will go a step further and state that I believe Gonzaga is criminally negligent for not immediately passing on the knowledge of a crime to the proper authorities.

If the legal system doesn't prescribe that civil torts and administrative hearings, etc., take place only after the resolution of criminal proceedings, then it should.

This story is uncomfortably similar to the alleged sexual abuse of students at the Washington Home for the Deaf. Or the Wenatchee Witch-Hunt.

The "Good Ole Boy" system is just too easily abused.

Thanks for bringing this in to the spotlight.

ti_dave
"If you dial," Iran said, eyes open and watching, "for greater venom, then I'll dial the same."

Either .... Or (4.00 / 7) (#6)
by streetlawyer on Mon Jun 04, 2001 at 03:53:25 AM EST

Whenever you see these words in close proximity, beware; nine times out of ten, the point is being missed within two column inches of "Either".

Either Paster is a real rapist, or he is innocent.

From the few cases of which I have close knowledge, the dichotomy between "real rapists" and the "innocent" is a completely ambiguous and useless one. Here's a third possibility:

It's possible that Paster has not committed any activity which could be called "rape" in a court of law, but has treated a number of women in a way which distressed them enough that he is commonly known to be Bad News among the women on campus (the involvement of the Women's Group is quite possibly merely the formal expression of informal knowledge among the women on the campus). The college authorities have heard the scuttlebut, and have decided to have a quiet word, suggesting that while they don't want to open a can of worms, the man is not suitable to be a teacher, and they would rather leave it at that.

This sort of thing is very common in all sorts of different contexts. It's actually quite a good way of ensuring that justice is done, relative to getting the courts involved.

--
Just because things have been nonergodic so far, doesn't mean that they'll be nonergodic forever

Trial by watercooler (4.00 / 2) (#12)
by afeldspar on Mon Jun 04, 2001 at 10:49:54 AM EST

It's possible that Paster has not committed any activity which could be called "rape" in a court of law, but has treated a number of women in a way which distressed them enough that he is commonly known to be Bad News among the women on campus (the involvement of the Women's Group is quite possibly merely the formal expression of informal knowledge among the women on the campus). The college authorities have heard the scuttlebut, and have decided to have a quiet word, suggesting that while they don't want to open a can of worms, the man is not suitable to be a teacher, and they would rather leave it at that.

Wow, you make it sound like deciding people's fates on the basis of rumor and innuendo is a good thing. I wonder if you'd be willing to be on the receiving end of that standard.

This sort of thing is very common in all sorts of different contexts. It's actually quite a good way of ensuring that justice is done, relative to getting the courts involved.

No it isn't.

We have enough problems with courts that are biased by personal perceptions, mistakenly prejudiced by the scope of the accusation, or just plain incompetent. And you're suggesting that we'll get satisfactory results if we shortcut the courts altogether?

As a plan, I'd call it "full of sound and fury". But then again, it's probably another streetlawyer attempt to waste time.


-- For those concerned about the "virality" of the GPL, a suggestion: Write Your Own Damn Code.
[ Parent ]

of course (none / 0) (#13)
by streetlawyer on Mon Jun 04, 2001 at 11:01:26 AM EST

Wow, you make it sound like deciding people's fates on the basis of rumor and innuendo is a good thing. I wonder if you'd be willing to be on the receiving end of that standard

Bring it on. I happen to care about my reputation, which is why I don't do things which give anyone reason to gossip about me (and it seems clear in this case that there was more than enough substance to the allegations). Paster didn't follow my example, but then demanded that we employ a judicial standard of proof (designed to keep innocent people out of jail) in deciding whether to trust him with other people's children (a decision in which I for one do not give him the benefit of the doubt)

--
Just because things have been nonergodic so far, doesn't mean that they'll be nonergodic forever
[ Parent ]

He isn't that good an example for your point. (none / 0) (#16)
by elenchos on Mon Jun 04, 2001 at 01:53:35 PM EST

My first draft of this story quoted much more from the court documents, but I cut that out because it was so hard to follow, and because it was just a long pargraph of he-said-she-said. And becuase the the rulings themselves are easily understood enough that it was better just to link to them.

The Supreme Court decision says that in the jury trial:

John Doe presented the testimony of roommates that they never saw or heard any indication that Jane Doe was unwilling to engage in sexual intercourse. He presented the testimony of two former girl friends that John Doe never pressured them to engage in sexual activity, never tried to talk them into sexual activity uncomfortable to them, and never criticized them for not engaging in sex.
Now, you are free to speculate about what his reputation was, and of course we can expect that most people would imagine all sorts of things about Paster. But Gonzaga didn't put up anyone on the stand to say that he was a jerk to women. All they had was the professor and the dorm advisor who say they were told he was an animal towards Peyton, an assertion she describes as "blown out of proportion." Opposite that, we have women who testify that he was not a cad.

So just weighing that, he looks like the victim of character assassination based on eavesdropping and innuendo. Most importantly, why are we able now to weigh and compare these two conflicting accounts? Because it all came out at the trial, where Paster was able to confront his accusors and see the evidence against him. But in the Kafkaesque treatment he got at the hands of Gonzaga, he wasn't even told what he was accused of, let alone given any chance to defend himself. Had Gonzaga's "trial by watercooler" been let to stand, we would never have heard the other side. Therin lies the problem.

So in theory this reputation thing sounds nice, and in practice, few of us can escape our reputation, but what the hastily-writen (and short-lived) law at that time did was open the door for a little bit of a bad rep to become the defining fact in a man's life, with no means of correction or verification.

This is how the Supreme Court characterized GU's abuse of that power:

Gonzaga asserts that there was nothing "highly offensive" about its attempts to determine the facts about John Doe's relationship with Jane Doe. However, the jury heard testimony that Gonzaga personnel had inquired into the personal relationships, habits, and even anatomy of John Doe. Although state regulation authorizes officials from a teacher certificate applicant's school to contact faculty members regarding the applicant's history of serious behavioral problems, the provision does not contemplate an investigation by nonfaculty school personnel into the intimate details of a candidate's sex life: "Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters. . . . When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy . . . ."
Now there is other evidence: Paster originally sued Peyton for defamation alongside GU and the staff members involved. Peyton countersued for sexual assault. Was this a legal defensive move, or did she actually believe she was sexually assaulted? They agreed to drop the mutual suits, with the agreement that Paster would resume his suit against her if anything she said suggested she was sexually assaulted. So she had the fear of another defamation suit if she accused him at the trial with GU. The fact of this settlement was kept from the jury at that trial, which is one of the reasons the Appeals Court overturned the verdict and sent them to have a new trial. But the Washington Supreme Court, of course, didn't see it that way.

So I don't feel certain either way of the truth about Paster. What I do think is that if a professional and fair investigation had been done, and the evidence had all been examined in the open, we would probably know the truth now. As it is, we have a muddled mess that might still have more legal wrangling ahead of it if GU appeals yet again. I would encourage GU to admit they were wrong and pay the man (as long as they don't raise my tuition...).

This is why our regular old system of determining guilt is still about the best thing we have. It is not surprising that a school as fanatically and blindly self-assured of it's own righteousness as Gonzaga was the first one to trip over this foolish policy.

The Brain, within its Groove
Runs evenly -- and true --
But let a Splinter swerve --
'Twere easier for You --
--Emily Dickinson, #556
[ Parent ]

reading between the lines (4.00 / 5) (#8)
by streetlawyer on Mon Jun 04, 2001 at 04:42:36 AM EST

But Peyton also testified on tape that she had reported to Gonzaga health clinical staff that she suffered lower-abdominal "discomfort" and other physical problems after dating Paster.

In other words, reading between the lines, the specific matter at issue is, unless my skills as a textual investigator have diminished, the following:

Peyton and Paster had sexual relations which included anal sex. As is often the case in these relationships, the man was more keen on this idea than the woman. Not unsurprisingly, the girl was unwilling to file a felony complaint over what was, in all likelihood, a number of consensual acts of buggery.

So, the question is; should a man be prevented from becoming a teacher because he used emotional pressure to persuade his girlfriend to take it up the back passage? I'm not sure of the answer here -- on the one hand, people's sex lives are private; on the other, I wouldn't want this character anywhere near my daughter. In either case it appears that the main issue is being missed; this sort of thing is *exactly* the kind of case in which "academic discipline" in the form of granting or withholding professional certification is appropriate, because we correctly demand a higher standard of behaviour from our professionals than the minimum required by the law. The important question is; did the university decide correctly?

--
Just because things have been nonergodic so far, doesn't mean that they'll be nonergodic forever

Reading the lines (4.85 / 7) (#9)
by sigwinch on Mon Jun 04, 2001 at 07:31:07 AM EST

Not reading between the lines, both him and the woman deny the allegations, the woman says the administrators made untrue statements regarding the facts, the woman says the administrators blew the situation out of proportion, other girlfriends deny any pattern of mistreatment, and the woman declined to press charges.

What we're left with is that the administrators convicted and sentenced him in absentia based on false facts, and refused to give him a chance to confront the witnesses against him. Typical actions for the American educational establishment.

I wouldn't want this character anywhere near my daughter.
Paradoxically, putting your daughter in the company of people who favor drum head trials with no appeal ever, and thus teaching her submission to authority, is far likelier to get her fucked up the ass.
... this sort of thing is *exactly* the kind of case in which "academic discipline" .. is appropriate, because we correctly demand a higher standard of behaviour from our professionals than the minimum required by the law.
The minimum required by law is that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Well, he did get a speedy trial, so it wasn't a total loss.

--
I don't want the world, I just want your half.
[ Parent ]

I disagree vigorously (4.50 / 4) (#11)
by mcherm on Mon Jun 04, 2001 at 08:50:18 AM EST

I disagree vigorously with your position, but I'm rating it a "5", because I think your point DEFINITELY ought to be discussed.

For the sake of discussion, I'll go ahead and presume your hypothesis that this is all about how we should treat a person who may have used emotional pressure to persuade his girlfriend to engage in anal sex. You propose that:

  1. Peyton's treatment was appropriate.
  2. We should demand a higher standard of our professionals than the mimimum required by law.
  3. Based on this information, you wouldn't want this character anywhere near your daughter.
  4. This outweighs the importance of keeping people's sex lives private.
(Actually, your post left it a little more ambigious than this... to some extent I'm setting it up as a "straw man".)

I totally disagree. Specifically, I address them point-by-point below:

  1. I think that his treatment was completely unfair and inappropriate. One reason is the inappropriateness of the "punishment" (see further comments). But another reason is that there was no "due process" -- no opportunity to defend himself or to come to an equitable and fair result.
  2. In a few ways, we may wish higher standards of our professionals, but ONLY where it's necessary for and relevent to the job. For instance, to ask that a judge not have been convicted of a felony or that a teacher not have a history of child molestation or abuse is quite reasonable. To ask that a teacher never have been convicted of a felony like burglery, or that a judge not have participated on political protests, is NOT relevent, and NOT appropriate. I can think of no (liscensed) professions where one's sexual practices (among consenting adults) are relevent to the job.
  3. I truely belived that one's interest in participating in anal sex does not have any bearing on one's fitness to interact with my daughter. And the kinds of (non-physical) inducments that a romantically engaged couple use to influence each other are difficult to measure and not predictive of the way they react with those to whom they are not romantically attached. However, I certainly respect your right to hold this opinion with regard to YOUR daughter.
  4. And to my mind, the most significant point of all is that their sex life is none of ANYONE ELSE'S business. Largely because of our culture, I can think of no thing more private than a couple's private sexual behavior. If THIS is not to remain behind the curtain of privacy than the curtain itself has been shreaded beyond all hope of recognition and we have decided to eliminate the entire concept of privacy. I vigorously object... I WANT my privacy -- at least in some matters.

Anyway, thanks for raising an important point, even if I DO disagree with it.

-- Michael Chermside

-- Michael Chermside
[ Parent ]

+1 FP, not knowing what rape is (4.50 / 2) (#14)
by mami on Mon Jun 04, 2001 at 12:30:25 PM EST

The material is too much for me to read now, but there is one sentence in the source here, which rang a bell. Quote:
"During the meeting, Jane Doe stated, "I guess I don't really know what rape is,"
I hope this story stays for a while in FP so that people have time to study the material.

I think the validity of the mentioned quote from Jane Doe is much supported by the findings reported in the documentary "The lost children of Rockdale County". Unfortunately the online site and even the word by word transcript don't really cut through for what they represent, but the actual film does very well.

Anyone who wants to give some more thoughts to the subject of girls and women not knowing what rape is (and men neither), I would invite to see the documentary in context with this case. It might shed some more light or more questions about what happens between men and women or girls and boys, each side not knowing what consent and coercion really is about.

Here the online links:
The Lost Children of Rockdale County
Transcript of the Documentary

State of Colorado (4.00 / 1) (#15)
by weirdling on Mon Jun 04, 2001 at 01:41:21 PM EST

Rape is defined as any sexual realtionship which is not wanted or any sexual relationship under the influence of a mind-altering substance which one party determines *after the fact* to have not wanted. Scared me...

I'm not doing this again; last time no one believed it.
[ Parent ]
Wow (2.00 / 1) (#18)
by spiralx on Mon Jun 04, 2001 at 04:01:25 PM EST

Score 5 there, for providing a link to one of the more disturbing things I've read in a while. And if it wasn't for the outbreak, nobody would ever have really known about it... how many places does this happen in?

It seems that smaller communities are really having problems nowadays with boredom... heroin use has been rocketing here in the UK in small towns over the last few years, compared to little or no growth in urban use.

You're doomed, I'm doomed, we're all doomed for ice cream. - Bob Aboey
[ Parent ]

Not-so-mindless link propagation. (none / 0) (#19)
by Apuleius on Mon Jun 04, 2001 at 05:45:47 PM EST

TheFire.org is an organization that combats insane disciplinary policies in colleges. IMNSHO, colleges shouldn't deal with rape investigations at all and should leave them to the police, but never mind that.


There is a time and a place for everything, and it's called college. (The South Park chef)
Should your point be University as Businesses? (5.00 / 1) (#20)
by turtleshadow on Tue Jun 05, 2001 at 01:58:50 AM EST

Your well written essay exposes the most vital argument from which your specifically cited evil springs forth.
Should universities be in the "business ..."

The institutional charter of University as education in the US and probably worldwide is now the charter of big business.
Universities have over time silently reduced or coerced civil rights from students, faculty and vistors for some time in exchange for cheaper higher quality Diplomas for the masses, more local jobs, and the sessional gladiator games.
As I live near a large University, I've observed there is little visable difference between the police quality of the University Police department and the City's own department in terms of police power. In fact the Univ. is better equiped for riots than the city. Unfortunately Beer is banned on campus but flows in the streets -- near my residence on game days. So where's my riot protection? Drunks don't swoop down on campus they prefer to walk a few blocks vandalizing everything in site. Now the city & University team up to protect the law abiding citizens on game day. Great but how do I tell wich Cop was who's after they've beaten me while I try to make it home through the midst of a block party.
The big difference is the matter University grounds being "private" property the matter of warrents, trespass, and violations are much different once the interest of the University is concerned. This is a serious problem for any large business or government entity.
Boundries between juristiction, depending on your residency (on/off)campus criminal extradition and penalties could be quite different after being caught on campus or off campus.
Now my town is intermingling private business/residence with University facilites so if something happens which department takes the call? My biggest concern is the University doesn't have a fire department -- why should their police be regarded as equal to city departments?
Lastly I hope your system doesn't force students to binding arbitration as many Universities have done. Because its cost effective not everyone can get their day in court. Students are often not allowed jury or true jurists to review their cases for on campus allegations. Its a closed system and with all closed systems accuratly predicting abuse will happen is not being clairvoyent.
Turtleshadow

Ivory tower != pristine (none / 0) (#21)
by gbnewby on Sat Jun 09, 2001 at 12:58:37 AM EST

Turtleshadow's on-target. I work as a professor at a top-5 public university, and worked at another before this. Universities are businesses (including state funded universities). There's nothing holy or ethical or freedom-loving about them.

We like to imagine universities are places where freedoms of all kinds flourish, but this is fantasy, often based on fond memories of our college years. While individual faculty are often truly commited to open ideas of all types, the institutions themselves disfavor any significant non-conformance.

There are no shortage of stories from faculty and students who have had their supposed freedoms (speech, association, freedom from persecution....the whole US Bill of Rights) squelched by Universities. At the same time, the same university might tout its history of activism -- this is selective memory at best.

Bottom line, to get back to the topic: It's ridiculous, despite some poster's comments in this thread, to think that someone operating within a university, college or similar environment has any moral or ethical benefits over anyone else. Certainly the idea that universities should have any responsibility for criminal enforcement is laughable and sad.

[ Parent ]
Universities as judges: the repercussions drag on. | 21 comments (14 topical, 7 editorial, 0 hidden)
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