New checks on campus sexual-harassment cops

Rule of law

By Jeremy Rabkin

The Wall Street Journal, October 19, 1994

By 1693, when the hysteria finally subsided in Salem village, 19 people had been hanged on witchcraft charges. A dozen years later, the young girl who had triggered the witch hunt made a public confession: Her tales of satanic spells, midnight possessions and broomstick rides through the sky were entirely fabricated. By that time, however, few wanted to rake over old scandals and nothing was done to punish the accuser, now a grown woman.

In contemporary America, we have progressed to the point where such accusers do not get off. In the era of the litigation explosion, the victims of false accusations strike back with damage suits. Today’s accusers face the prospect of sizeable financial liability for their excesses.

That message was confirmed last month by a federal district court in the case of Silva v. University of New Hampshire. The ruling allows a teacher who had been fired on sexual-harassment charges to sue university officials personally for wrongful treatment. This may prove a headache for university administrators but it may also be the only way to get them to pay attention to serious abuses within their own institutions.

Donald Silva, an ordained minister, had been a writing instructor at UNH since the mid-1960s. On one occasion, during a writing class in the spring of 1992, he compared focused writing to “sex,” for the way it merges with its subject. On another occasion, to illustrate vivid language, he cited a belly-dancer’s description of her craft as akin to “jello on a plate with a vibrator underneath.” Female students protested these remarks as ‘sexual harassment’ and university officials took their protests seriously.

In short order, formal charges were under way and within a year Mr. Silva had been removed from his teaching post. Mr. Silva’s case was taken up by the Center for Individual Rights in Washington, D.C., an organization that has tried to rescue the First Amendment from political correctness mania. When the university denied Mr. Silva’s internal appeals the center helped him to file suit in federal district court. Judge Shane Devine’s Sept. 15 ruling secured Mr. Silva’s reinstatement with back pay, finding that the university’s actions had denied Mr. Silva his right to free speech.

This was hardly remarkable in itself. The UNH policy defines ‘`sexual harassment’ to include, among other things, “verbal . . . conduct of a sexual nature . . . creating [an] offensive working or academic environment.” If the term “conduct of a sexual nature” can encompass such off-hand references as Mr. Silva’s, feminists would seem to have an open-ended veto right over classroom speech.

Nor was it so remarkable that the judge discounted student reports of what was said by Mr. Silva in accounts that grew more lurid and sensational with each telling. Judge Devine dismissed these embellishments as a reflection of subsequent consultation among the accusing students and the faculty counselors who urged them to pursue their claims.

But what is truly notable is that the judge rejected UNH’s claim that college personnel must be immune from personal liability for the actions that resulted in Mr. Silva’s firing. Judge Devine pointed to Supreme Court precedents holding that public officials should be held personally liable if they act in disregard of “clearly established statutory or constitutional rights.”

University personnel, the judge concluded, have every reason to know that the First Amendment is a “clearly established constitutional right.” If the case goes forward to trial (the university is appealing), Mr. Silva will have the delicious prospect of forcing his tormentors to answer personally for their hysterical response to the allegations against him. Mr. Silva’s suit seeks personal damages from three top administrators and from three professors and two students who served on the academic appeals board that judged his case.

Corporate CEOs and corporate directors routinely carry personal insurance to cover liability awards against their decisions. The premiums can be costly, but they are understood to be a necessary cost of doing business. But what about university officials? And what about professors and students who serve on academic disciplinary boards? Certainly it is rare for academic officials to have personal “malpractice” insurance. They have relied on universities to indemnify them in the rare cases in which they have been subject to personal liability. But universities in turn have sought to preserve their discretion to indemnify or not, as they judge the merits of the individual case. And no one knows how they may judge such cases, because Mr. Silva’s is the first case to hold that liability may be found for wrongful imposition of sexual harassment penalties.