Last month I wrote a piece criticizing Columbia University Marching Band’s new policy of expelling members accused of sexual misconduct without even making a pretence of affording them due process to ascertain whether the accusation is true, or even credible.  I wrote that I was thankful that at least it was only expulsion from the band and not from Columbia University itself, but expressed the concern that this might be a harbinger of things to come in formal disciplinary proceedings where accusations of sexual assault are concerned.

To judge from the experiences of Patrick Witt it sounds as though I might have been behind the curve on this one.

Patrick Witt was a law student at Yale University who was also a finalist for a Rhodes scholarship and the first choice quarter-back for the university football team, and he was hoping to make a career in the NFL.  All this came to a juddering halt when he was subjected to informal disciplinary proceedings for a sexual misconduct charge.

Informal disciplinary proceedings have their place at a university because they recognise either that students often engage in behavior which is not serious enough to merit formal disciplinary proceedings, but is nevertheless disrespectful and less than admirable, or the accuser wishes to make a point that they consider the behaviour distressing and unacceptable and want it to cease, but do not wish to make a big issue of it.

The procedures essentially recognize that students are still immature, are still exploring boundaries and are prone to act like jerks at times.  We have such procedures at my university for bullying and harassment, and a colleague of mine has recently been dealing with a harassment allegation made by one of my students against another student under this informal code. The emphasis is not on judging and punishing, but on informing the accused that the accuser is upset by their behavior and finds it unacceptable and exploring why certain behaviors might be interpreted in different ways.

For example, a student simply might not realise that another student might reasonably be upset by their behaviour and the process will therefore explore, in a non-threatening and non-confrontational manner, whether and how the accused might modify their behavior.  Mediation between the accuser and the accused can also be useful in exploring instances of miscommunication.

There are a number of features of an informal disciplinary code which make it suitable for this purpose.

• Firstly, it must be low-key, and in the case referred to above my colleague, who was a fairly junior colleague, simply had a discussion with the student against whom the allegations had been made.
• Secondly, it goes without saying that there must be no formal sanctions of any kind.
• Thirdly, the process must be completely confidential, so that there is no possibility of any reputational harm.
• Finally, once the process is completed, the matter should be considered closed and there should be no possibility of any formal proceedings, unless there is a recurrence of the alleged behavior.

Maybe Witt does need to think about being more considerate and respectful towards women.  Or maybe not, there’s no way of knowing.  However, if he does, this would be an appropriate way of addressing the issue.

From the article, however, the procedure that Witt was subjected appears falls short of these criteria in a number of respects and appears to belong only in the pages of a Kafka novel.  The proceedings seemed to have too many of the trappings of formal disciplinary procedures and, for example, were conducted by a professor.

Particularly redolent of Kafka was the fact that he was never informed of the exact charge against him, but simply that it related to some form of sexual misconduct.  How can the experience be educational, if you never know precisely what you are meant to have done?  The proceedings could not impose any formal sanctions on him, but it was made clear that the accuser could at any time escalate the allegation by invoking the formal disciplinary procedures.

However, since the proceedings were confidential, they should have been no more than a minor irritation for Patrick Witt, unless the accuser had chosen to escalate the complaint, and the informal disciplinary code is not the real villain of the piece here.  An anonymous source (very possibly the accuser, but we will never know for sure) tipped off the Rhodes scholarship committee about this allegation, with the result that Witt was removed from the final short-list.

The same source also tipped off the New York Times, who ran a piece on the allegation which resulted in Witt losing the offer of permanent employment with his Summer vacation employer after he graduated, and meant that he was completely ignored in the NFL draft.  These are all consequences which are far more serious and far-reaching than expulsion from a university marching band.

Sexual misconduct allegations are now so toxic that any organisation which is not compelled to afford the accused due process (minimal though it might be), may well consider it more important to protect its reputation by throwing the accused under the bus than abiding by any principles of fairness.  This is often justified by asserting that a Rhodes scholarship or playing in the NFL are privileges and therefore demand high personal standards.

However, this cannot preclude due process to determine whether the accused is actually guilty of the accusations, and the conduct of the accuser suggests that her case was probably not strong.

Furthermore, I have no idea whether Witt is a likeable guy or not, but so what if he is a jerk?  Over the years plenty of complete jerks must have been awarded Rhodes scholarships and the NFL (like the Premier league in England) is full of them.  If we start to apply standards of likeability in these judgements, where do we stop?

All this paints a depressing picture, but it appears that Witt has been able to resurrect at least some of his ambitions, since he is now enrolled at Harvard Law School.  I wish him well.