Vanishing Point

In the beginning there was nothing. And then there was light. People gradually became aware that many of those around them were the victims of awful injustices due only to their race, ethnicity, gender or persuasion. Soon people could identify these injustices in their communities and even their own lives. With this came the realization that no place was immune to the hideous effects of ignorance and prejudice, not even the idyllic University of Oregon campus.

So in 1971 the Office of Affirmative Action (OAA) was created. The OAA was a place where claims of discrimination would be heard and investigated and measures to end the discriminatory actions implemented. It was a definite step towards removing hate from campus. The people saw that it was good.

In fact, the OAA was so good that it was twenty years before anybody looked at the system, identified areas of concern and demanded change.

From its inception, the OAA's grievance process has been very simple. Any formal complaint launched an investigation by the OAA's Human Rights Investigator. The investigator interviewed the parties involved, and anyone else who might have information relevant to the plaintiffıs claim, in an attempt to provide an objective account of the events that caused the plaintiff to feel they had been the victim of discrimination.

When the investigation was finished, the investigator presented the findings to the director of the OAA and the University President. These two then made the final decision as to whether the discrimination claim had any merit and if so, what to do about it.

As the particulars of the process became more widely known, many in the campus community were worried that it was too closed and insular. It was generally agreed that more than two people should be making decisions that could have a significant impact on a person's life.

These concerns finally found the ear of University President Myles Brand and OAA director Diane Wong, who decided the system needed an overhaul. In 1991, Brand established the Affirmative Action Advisory Council (AAAC) to review the findings of all investigations into claims of harassment and discrimination. Neither Brand or Wong are still with the University, which leaves current President David Frohnmayer and OAA director Ken Lehrman, as well as the AAAC itself, to inherit the system.

As in 1971, discontent was mollified with a definitive step-namely the establishment of the advisory council. The AAAC was designed to include five members from widely disparate backgrounds, each bringing unique experiences and perspectives to the council. Currently, the AAAC is composed of council chair Linda King, Director of Human Resources; Lorraine Davis, Vice Provost of Academic Affairs; Weston Morrill, Dean of Student Life; David Hubin, Executive Assistant to the President and Peter Swan, Assistant to the President for Legal Affairs. This lineup, which has changed only slightly since the AAAC was first formed, is considered to amply represent a cross-section of the campus. According to the administration, each major segment of the school population is present: King for the University staff, Davis for the faculty, Morrill for the students and Hubin and Swan for the administration.

Even though the AAAC was introduced into the system as a new entity separate from the OAA or President's office, it does not represent any additional steps to the overall procedure. Rather, it expands a dimension already present in the process. The basic grievance process remains fairly simple.

Whenever someone registers a claim of harassment or discrimination at the Office of Affirmative Action they have two options: designate the claim as formal or informal. The informal is the less invasive (and more popular) of the two. There is no investigation with an informal claim. At the least, the alleged offender is notified of what the plaintiff feels is inappropriate, allowing that person to avoid such behavior in the future.

An informal claim can also result in mediation. A trained mediator sits down with the parties involved and helps them identify the cause of the problem as well as formulate solutions to it. If successful, mediation should allow those involved to continue working together.

At any point an informal claim may be changed to a formal claim. If this happens, or if the plaintiff decides to pursue a formal claim right from the start, then the Human Rights Investigator immediately begins the series of interviews which comprise a comprehensive inquiry.

When the investigation is completed, the OAA submits the findings to the AAAC. The AAAC assumes the role formerly carried out by the director of the OAA and the University President. The council reviews the OAA's report and, after due deliberation, makes a recommendation to the President as to the validity of the claim and any action the University should take. Although the President technically has the final say in the matter, it makes no sense for him to countermand the AAAC's conclusion.

It is obvious that the creation of the AAAC was another advance towards an evenhanded method for dealing with discrimination on campus. Unfortunately, the revised system hardly made it to the twenty year benchmark of its predecessor. It took barely four years for the Office of Affirmative Action and the grievance process to come under fire again. Equally unfortunate is the fact that the University seems less inclined to initiate changes as quickly or as large in scope as it did in 1971 and 1991.

While many individuals and groups feel the grievance process is flawed, the current reform effort is spearheaded by ASUO President Jen Williamson and University Affairs Coordinator Bill Washburn. The two drafted and presented a proposal to President Frohnmayer outlining revisions they feel are necessary to a truly fair and open grievance process.

Some of their proposed revisions are more controversial than others. A major point of contention is the composition of the AAAC. Williamson and Washburn want to make an immediate and dramatic change in the membership of the council. Under their plan, the AAAC would be comprised of one-third faculty, one-third staff and one-third students. "Students should be involved in every single decision making process on this campus," Washburn said. As of now, students are not directly represented on the council and never have been.

While OAA director Ken Lehrman voices the administrationıs general opinion when he indicates students are represented by the Dean of Student Life, Weston Morill, he also remains open to the inclusion of students themselves on the AAAC. However, Lehrman is quick to point out the complications with having students on the council. "An important aspect of [the AAAC] is its consistency," he said. A stable group which can draw on past experience to inform the present decision-making process is part of the foundation the AAAC is built upon. Lerhmanıs concern that a constantly changing student element could disrupt the group dynamic of the council has some merit, but is surely outweighed by the experience and influence of the rest of the permanent members of the AAAC.

Another reservation echoed throughout the administration is that of maintaining confidentiality. The AAAC deals with very delicate matters that are potentially damaging to everyone involved, regardless of the eventual outcome of the process. Lehrman also stresses that over the course of an investigation aspects of an individual's personal life often come to light. "These are things that do not need to be public knowledge," Lehrman says.

With students coming and going from the AAAC there is the very real possibility that some of this sensitive information, whether details of a certain case or the irrelevant bits inevitably collected during an investigation, may eventually find its way into the campus rumor mill.

Of course there are many responsible and trustworthy students at the University who could be valuable members of the AAAC and Lehrman readily admits this. As far as he is concerned, including student representatives on the council is only a matter of devising a selection process that provides these responsible students. Also, precautions along the lines of having the appointed students sign nondisclosure forms would be implemented.

There is one other provision regarding membership under the ASUO proposal: the Legal Counsel to the President would be barred from serving on the council. Peter Swan, professor of law at the University and the President's Legal Counsel, currently holds a seat on the council. Many have raised an objection to this on the grounds that it constitutes a conflict of interest for Swan.

Detractors argue that Swan's dual roles are in opposition. As a member of the AAAC, he hears the plaintiff's claims and all evidence gathered by the OAA in its investigation. His opinion plays a part in the final decision the council makes regarding any case. If one of the parties involved decides to bring suit against the University, Swan would then head the school's defense. Critics wonder if the distinction between these two roles might not become blurred at some point, with the University's interests coming out ahead of the individual's.

"I reject those allegations," President Frohnmayer said. "The role of the University's legal counsel is to help resolve controversies in a just and appropriate way. The advice of legal counsel is indispensable in the process to make sure that the University is operating lawfully."

Lehrman, who is also an attorney, finds nothing to suggest a conflict of interest. He points out that at other schools with similar grievance processes, the president's legal counsel is often included directly in the procedure.

However, as all our parents told us at one time or another, just because everyone else is doing it doesnıt make it right. In addition, there are many other professors of law at the University who could provide much the same viewpoint and expertise to the AAAC that Swan does now. Appointing one of these professors would remove the specter of a conflict of interest and free Swan to concentrate on his other responsibilities, which are many.

Swan himself doesn't think his position in any way produces a conflict of interest. Though he enjoys the opportunity to be a part of the process, which he feels works quite well, he adds, "Itıs a lot of work and I wouldn't object if I was replaced."

Beyond this, Williamson's and Washburn's proposal covers several other less controversial points that have received less attention. They also want the conclusions of the AAAC to be made known to the plaintiff. They feel it is important for the person who initiated the claim to have a clear knowledge of the outcome, including the specific repercussions incurred by the offender.

Also, the proposal puts forth a measure that would include not only formal claims and corresponding findings in faculty and staff personnel files, but informal claims as well. Any and all such claims would be taken into account during evaluations for tenure and promotion. The inclusion of formal claims in personnel files was just recently made official, although "As far as any of us [the members of the AAAC] know, it did not represent a change," Swan said, indicating that formal findings had always been a part of those files.

Washburn feels the informal claims should be included as well because they are legitimate complaints that are often resolved through mediation. This does not mean harassment or discrimination did not occur. It only means that an alternative to a formal investigation was employed.

Lerhman and Swan both disagree, opposing the addition of informal claims to permanent records. By nature, the OAA must accept any informal claim. The plaintiff can refuse to go any further with the process than entering the claim. If the person refuses mediation and the formal claim process, should these informal claims with absolutely no corroboration or conclusion be attached to a permanent personnel file? This could become an easy way for a dissatisfied student to exact a measure of revenge on a teacher.

The rest of Williamson's and Washburn's proposal calls for both a strict policy disallowing student-faculty sexual relations and a clear delineation to be drawn between the procedure and possible consequences that could result from either a formal or informal claim. This would be distributed in a new brochure that would contain not only the rewritten definitions, but a section describing the services available through the Office of Student Advocacy for victims of discrimination.

"Everything in the proposal is under consideration," Frohnmayer said. "That process won't be completed for weeks." As it stands, the University has not taken a definitive stance regarding any of the points covered in the ASUO proposal, with the exception of the demand for an Office of Affirmative Action and grievance process independent of the University. Despite the proposalıs insistence that an OAA separate from the school "is the only way to guarantee the impartial resolution of discrimination claims," President Frohnmayer states that this suggestion is unacceptable.

As with any effort at reform, concessions and compromises will have to be made on all sides. Yet so far this does not seem to be the case. At the heart of the matter, the administration refuses to recognize any real problems with the system itself. Instead, they look to the general campus community as having a lack of faith in the grievance process as an institution. ³Perspectives are very real to people," Lehrman said, pinpointing an administrative attitude which seems to say that true reform of the process is not what's needed; a simple face lift to placate the campus population is enough.

Luckily, by citing specific elements of the grievance process as rouble areas, Williamson, Washburn and other critics have forestalled any merely cosmetic changes to the grievance process. Realizing this, President Frohnmayer, Lerhman and Swan remain warily open to the prospect of revisions to the system. While all three avidly support the current system, none will reject the revisions out of hand.

In fact, this seems like an ideal situation. The administration maintains that even though the grievance process is fine as it is, replacing Swan or adding students to the AAAC would not really have a major effect on the system's operation. If this is the case, then things fall right into place: by implementing these changes, the student advocates get what they want and, by its own admission, there is no cost to the administration or the efficacy of the procedure. As such, it can be reasonably expected that at least some of the ASUO's proposed revisions will have to be acted on.

Then why is it taking so long? Common sense dictates that revisions of any type should undergo a thorough review process, just as President Frohnmayer and his advisors have been doing for weeks. Perhaps the answer lies with the position of inaction Frohnmayer defines this position of inaction when he says, "[T]his is not a problem with process, but a problem with perceptions." If perspective is so important, then this perspective must be clouding the issue as much as any other.

Andrew Oberriter wrote this for the Oregon Commentator