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Faculty Question Investigation and Diversity Practices

By ELIZABETH SAWYER

College faculty met for over three hours in a plenary meeting on Nov. 3 in which they passed a motion declaring their commitment to promoting diversity and discussed the investigative procedures resulting from allegations of racial profiling  by Public Safety.

Diversity Practices Motion

The motion, formally entitled, “Moving Forward on Diversity Practices” passed with 113 yes votes, 8 no votes and 1 abstention. Faculty voted anonymously by paper ballot.

Professors Gloria González, Darién Davis and Michael Sheridan of the spanish, history and anthropology departments, respectively, presented the motion on behalf of Middlebury Faculty for an Inclusive Community, a caucus that formed in the wake of the Charles Murray protests last spring. The motion cited the college’s inability to address issues of racism without estranging members of the community as justification for the suggestions.

The motion suggests four measures aimed at making the college more inclusive: conducting an external review on diversity policies and practices; creating a standing faculty diversity committee that would work with the administration, board of trustees and other faculty bodies; establishing a protocol for recording, reporting and responding to harassment and racism; and hiring an external facilitator to lead discussions aimed at fostering diversity within the community.

“As we continue to debate issues, create committees, and hold executive sessions, many of us are feeling more alienated and perplexed by the inappropriate actions and words of some of our colleagues, and the racist atmosphere that has affected our health and well-being,” reads the motion.

“We believe that we need a clear institutional policy for how to respond to such acts and how to change the social environment in a productive and respectful manner … the college, on its own, is not prepared to guide us through difficult conversations without alienating many colleagues.”

The passing of a motion does not result in an immediate policy creation or change. The motion will go to the faculty council and the chief diversity officer, Miguel Fernández, for consideration and potential implementation.

“What we’re doing here is making an expression of our collective will. We leave it to the administration to decide what steps to do and what timing,” Sheridan explained.

“I think this is an urgent thing to do, especially given what we read in The Campus newspaper about issues of racial profiling,” said Patricia Saldarriaga, a Spanish professor. “In spite of everything that we’re doing that sounds very, very efficient, I think we need to make some changes. And those changes in my opinion, when there are students and faculty suffering, I think we need to do something now.”

Davis views the motion as a way to demonstrate the college’s commitment to progress and improvement.

“This could help us create new narratives of continually getting some place where we want to [be.] This sort of gives us a sense, not just for PR, but for PR, that we are, as a Middlebury community, not what is said on C-SPAN or in The New York Times. That we as a faculty agree that this is something important and that we’re moving as educators to try to become wiser,” he said.

Fernández voiced his office’s support for the motion, informing the room that he had discussed both an external review and standing faculty committee prior to the meeting. He said he supports hiring an external facilitator, and has already sought out recommendations from chief diversity officers at other schools.

College president Laurie L. Patton echoed similar sentiments of support.

“I think the time for us to do it is now,” Patton said. “We have put a lot of things in place…over the last couple of years but they’re clearly not effective enough and we need to think about how to make them all better…so I see all four of these, particularly the committee, as a way of our being able, as an administration, to check in.”

Investigative Procedures

The college’s General Counsel Hannah Ross and Title IX Coordinator Sue Ritter provided information and answered questions relating to the college’s investigative and disciplinary processes. Ross referred to Addis Fouche-Channer’s ’17 allegations of racial profiling with veiled language, emphasizing that she was prohibited from discussing most of the details of the case, due to federal and state law.

Ross emphasized that the investigation into Fouche-Channer’s involvement in the events of Mar. 2 resulted in a finding of “no determination,” rather than a finding of guilt or innocence.

Fouche-Channer did not undergo a judiciary hearing last spring following the conclusion of the investigation.

“A judicial affairs officer makes a decision at a particular moment in time about whether or not to proceed to a hearing before the community judicial board. No hearing before the judicial board occurred,” Ross said.

Ross stressed that when Fouche-Channer brought a complaint of discrimination to the college over the summer, the resulting investigation focused solely on the employee accused of discrimination and not on Fouche-Channer’s conduct.

“The student made a complaint that she had been discriminated against in violation of our anti-harassment policy. This is a claim of misconduct by an employee, which doesn’t start a conduct investigation about a student’s behavior, it starts an investigation about whether one of our employees violated our anti-harassment and anti-discrimination policy,” Ross said.

Ross added that the investigation found the student’s claim of discrimination to be unsubstantiated, which indicated that the employee did not violate the anti-discrimination policy. She cited newly acquired evidence, specifically eyewitness identifications, as the corroborating evidence for the officer’s testimony.

“Other evidence that came to light through the painstaking investigation that Sue’s office conducted corroborated that the testimony of the public safety officer was accurate and truthful. The other evidence included eyewitness identifications…There was no evidence that he had acted based on race,” Ross said.

“That’s not a violation of our anti-harassment and anti-discrimination policy, to accurately and truthfully identify someone. A belief that someone acted based on race or any other protected personal characteristic, as sincere as it may be, is not enough under this process, we need to find evidence of that,” Ross continued.

Sujata Moorti, a Gender, Sexuality and Feminist Studies professor, raised concerns over the use of eyewitness identifications that Ross mentioned.

“Is that the only basis on which you decided that there was no discrimination, there was no violation of the college policy? Because there’s tons of scholarly evidence saying that eyewitness accounts and eyewitness testimony is really unreliable,” Moorti said.

“I don’t feel that I can go into detail and summarize all of the evidence…Our investigators and adjudicators…are sensitive to the fact that memory is flawed and that there are eyewitness accounts that are not credible. There are eyewitness accounts that are credible, for a variety of reasons,” Ross said.

“I would just say that we need to be particularly careful when we have evidence from students where students of color are mistakenly identified on an ongoing basis,” Moorti replied.

Ross agreed. Ritter also addressed Moorti’s question, explaining the ways that investigators assess credibility.

“We evaluate factors like the clarity of their observations, their ability to recall events accurately, the consistency of the witness’  claims, the witnesses’ demeanor during the interview, the witness’s potential interest or bias in the outcome, whether the witness’ statement was consistent or inconsistent with other evidence, and the existence of corroborative evidence. we are always looking for… the reasonableness or unreasonableness of a witness’ claims,” Ritter said.

Patricia Saldarriaga asked whether a case is treated differently if an accused party has been accused of acts of discrimination in the past.

“In talking about patterns, I wonder whether you have considered in this particular case, hypothetically speaking, let’s put it that way, when somebody who is accused…of racial profiling, has other cases where he’s also been accused of racial profiling…how would that affect the reliability of that testimony from an officer?” Saldarriaga asked.

Ross replied that she wasn’t sure the question was entirely within the realm of the hypothetical, and said she could not be more precise, but that they do look for information in order to construct and consider a pattern of behavior. Ritter emphasized that this pattern has to be “substantiated.”

“There has to be evidence that other than just a report,” Ritter said.

Student Government Association (SGA) Chief of Staff Ishrak Alam ’18 asked whether Ross or Ritter could provide information pertaining to the allegations that a professor was racially profiled by a public safety officer.

“It’s been resolved,” Ross said.

Peter Johnson, a computer science professor, proceeded to question the policy of confidentiality with regard to the case of alleged racial profiling of the professor. Johnson expressed frustration with the way his colleagues have been affected by the lack of information.

“I understand that there are confidentiality issues…I think there’s a conflict though, because in some cases where the resolution is not disclosed, then other members of the community are adversely affected,” he said. “Even if it’s resolved from the administrative standpoint, other members of the community may be scared. If they don’t know that someone who may have done something is, say, still employed by the college, then these friends of ours, these colleagues, may be walking around uncertain if this is a person they may have to face in a law enforcement-ish circumstance.”

“I would guess that the reason for confidentiality after the resolution is to protect the person who may or may not have been disciplined. But on the other hand that’s affecting our friends. So basically what this boils down to is my friends are scared and I don’t like it,” Johnson added.

In response, Ross emphasized the importance of confidentiality in the investigative process.

“Middlebury didn’t dream this up on its own. Every other institution, every other employer I know of has confidentiality provisions in these exact same policies that look exactly like this, and they are there to get people to bring complaints forward, because it is very, very common that when people want to report they have concerns about confidentiality…They’re concerned about retaliation against them, they’re concerned about retaliation against the people who may be called to testify as witnesses,” Ross said.

Michael Olinick, a math professor, who wrote the aforementioned letter to the editor detailing the alleged racial profiling,  further questioned the practice of investigating patterns of behavior, wondering how reports of benign interactions with Public Safety officers would be obtained, since they would presumably not be reported.

“I understand racial profiling to mean that a person treats someone of color differently than they would treat a white person. So let’s take a hypothetical case, that I am leaving my office late at night which I often do, walking towards my car and a campus security officer comes up to me and demands me to stop, raise my hands, explain what I’m doing here. And I’m a person of color and believe that that was racial profiling. And I talk to some of my colleagues who say they do this all the time, they leave their buildings at night quite late and they often see campus security people who just wave at them. In an investigation of racial profiling, would you attempt, do you normally attempt to investigate how that person who’s been charged with profiling, has behaved in similar situations with a white person?” Olinick asked.

Ross responded that yes, they look at patterns of behavior. She then went on to reflect on the use and meaning of the term “racial profiling.”

“Racial profiling is a label that is loaded and that is about a particular set of police practices in law enforcement,” Ross said. “The choice of saying this is a racial profiling case I understand is to get at the feeling that that decision should not be made based on race. And I agree with that. We shouldn’t be making decisions based on race about speaking to someone who’s leaving a building and presuming that the color of their skin means they don’t belong there. No question.”

Ross then explained that certain instances that appear to be discriminatory might not meet the legal standard required to result in a guilty finding.

“In order to comply with the law, it has to rise to the level of harassment or discrimination. And we have a challenge in our culture at this moment where we talk about things as harassing or discriminatory and we use that in a broader sense than the law does. The law has a standard of severe and pervasive and an ongoing basis, and we have to apply the legal standard,” Ross answered.

Olinick inquired again about whether investigations look into patterns of behavior.

“I’ve heard a lot about persistence of behavior where you can say well, there are a number of cases where this particular person acted in an inappropriate way toward persons of color. But this could be a single incident where there are many instances where this person has exhibited a pattern of behaving in a non-hostile, friendly way toward white people. And you’re telling me that part of the investigator’s responsibility is to seek out instances of parallel actions that involve–”

“Yeah, so in the law we talk about this as ‘are similarly situated people treated the same?’ And ‘are dissimilarly situated people treated differently?’…Our investigators ask for and get information to allow them to evaluate that,” Ross replied.

“Okay and how would they go about doing that. Is that up to the person bringing the complaint to suggest specific individuals to talk to or?” Olinick asked.

“If the individual bringing the complaint has information they can give that information to the investigator,” Ross answered.

“Yeah, but if they don’t?” Olinick asked.

“The investigator can get information from any Middlebury office that will help them resolve the investigation. So they can ask for information from relevant offices about that person’s interactions with other people. They get that information they evaluate whether it shows us patterns,” Ross explained.

“There isn’t going to be much of a record of innocent transactions between people…If a public safety officer behaves toward me in a friendly way or just ignores me, I’m not going to report that. So there isn’t going to be a record of how that person is treating people who’ve been in the majority up to this point,” Olinick said.

Ross responded by listing alternative ways that investigators can obtain information that allows them to construct an understanding of an employee’s past performance.

“There could be information from people who’ve worked with an employee for a number of years who’s witnessed a number of interactions that that employee has had on our campus. There could be information about an employee’s past performance from the way that they’ve been performance managed…we look for that information every way we can,” Ross said.

By 6:05 p.m., the three remaining participants scheduled on the meeting’s agenda had left the room. Michael Roy, dean of the library, and associate professor of Chinese Hang Du had been scheduled to provide information reports. President Laurie L. Patton had been scheduled to make closing remarks, but had left the building. As a result of their absences and consequent unavailability to speak, the meeting was adjourned.

1 Comment

One Response to “Faculty Question Investigation and Diversity Practices”

  1. Mk on November 11th, 2017 9:23 am

    Thank you, professor Olinick! Questions that cut to the chase and that persist. It’s clear that issues of investigations and confidentiality need addressing, judging by how little water the answers provided hold.

    [Reply]