U of S : Communications : OCN : Nov 14, 1997

In a cryptic article on a settlement reached by the University with suspended Education professor Michael Murphy, the StarPhoenix (Nov. 1, 1997) reports that after the Faculty Association decided to contest President Ivany's recommendation that Murphy be dismissed for unprofessional conduct, the administration had agreed to a package for him costing the institution a quarter of a million dollars.

Although the whole affair has been cloaked in secrecy, a settlement of this magnitude raises questions about academic due process. Did Murphy's conduct warrant his dismissal? What exactly were the circumstances of the case? And what procedural and substantive norms did the University administration apply in reaching its initial conclusion?

We will never know the precise details because "the University will not publicize the circumstances which led to it."

The newspaper account relates only that Professor Murphy allegedly was involved in placing graffiti on a female colleague's door on Thanksgiving weekend in 1996, leading to the decision to suspend him.

University discrimination and harassment officer Carol Pond is quoted as saying that it would be questionable whether one incident would have met the technical definition of sexual harassment.

What kind of offence, if any, did the suspended professor commit? If he did, indeed, commit an offence, why should he be so handsomely compensated by the University!

Little patience with due process

The informal type of administrative process by which the University settles intramural disputes presents both advantages and dangers. It's less costly and less burdened by technical rules of evidence, but it's often composed of persons who are not cognizant of, and have little patience with, rules of due process.

In the words of Professor John Fekete, of Trent University: "These [sexual harassment] panels in universities are amateur panels; they run kangaroo courts; they fail to deliver due process to all parties; and cannot protect and provide fair play to the respondents."

Although Fekete is addressing a particular problem, his words have a more general application.

There's a danger in an era of exiguous university financing that overly zealous action by university administrations in dismissing professors could lead to lawsuits costing the University substantial amounts of money. Beyond that, there's the question of basic fair treatment to an accused individual facing the substantial weight and resources of a whole institution.

What constitutes "due process" in such a case?

Rules of "fundamental justice"

In 1972 Chief Justice Gerald Fauteux of the Supreme Court of Canada defined the rules of "fundamental justice" as requiring "that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case."

Because of the confidentiality shrouding the applicable process, we will never know whether these norms were followed in Professor Murphy's case.

Perhaps there's too much confidentiality in the University. Sometimes facts must be kept secret. But the precedential value of a case arises only if the facts and the reason for a decision are made public so that the whole university-community can examine them.

In saying this, one cannot help but have a certain sympathy with administrators and disciplinary panels who make these decisions. They are not legally trained and sometimes the facts are elusive and the norms to be applied obscure. Who would be the ideal judge! One recalls the saintly Father Zosima in Dostoyevsky's novel The Brothers Karamazov, a seer and mystic of incisive insight, unimpeachable probity and transparent good will, and even that holy man did not render any decision in the domestic dispute in which his intervention was requested.

Unfortunately, there are few Zosimas in universities.

- Howard McConnell is a professor of law at the U of S.

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