News

Hang 'Em High

As student Kevin Keeney recently discovered, no on can outrun the University's long arm of the law, even those that may be innocent.

Last November, when a University student began to tire of sexually harassing phone calls, she was faced with the choice of where to go for justice. Unfortunately for everyone involved, she turned to the University's judiciary system.

By now everyone has heard of Kevin Keeney. Keeney is the University wrestler who, in a highly publicized case, was found guilty by the University of sexual harassment in February of 1997 for the calls, which were made from Keeney's home.

After an investigation, Keeney was sentenced by Elaine Green, Student Conduct Coordinator, to disciplinary probation and ordered to issue an apology, as well as write a paper on the effects of sexual harassment. Keeney's unwanted notoriety came when he challenged the decision and filled a petition for review by the courts.

For a case which sounds cut and dry, one would think that the decision would have resulted from standard procedures. But questions abound regarding Elaine Green's handling of the investigation. Charges of due process rights violations, a disturbing lack of evidence, questionable University jurisdiction, and an unsettling lack of justice for victim and accused have been leveled at Green's office.

As a result, the University of Oregon's judicial code has now come under fire. The case of Kevin Keeney seems to illustrate the lack of fairness and continuity which results when colleges hold court. And those shortcomings, if nothing else, seem to define the University's rickety system of justice.

The contentious issues involved bring into question the legality of Green's decision. "Kevin was railroaded by a kangaroo court," said John Parrott, Keeney's lawyer He derides Green, whom he calls a "fire-breathing campus prosecutor with too much power" for "due process mistakes, which nullified the proceedings and her proceedings and her decision." To begin with, say Keeney's attorneys, Green falsely portrayed the nature and rules of the proceedings to Keeney. For example, in a letter to Keeney dated December 6, 1996, Green states that: "You must meet with me by December 20thor I will resolve the complaint informally per OAR 571-21-045. That section of the Student Conduct Code allows me to make a finding without hearing your side of the story and to impose the sanction of Probation, Restitution, Community Service These sanctions are defined in the Excerpts which are enclosed for your reference." Ken Morrow, one of Keeney's attorneys, wrote to Green, calling it "a blatant misrepresentation of the procedure," telling her: "You know full well that Kevin had the right to throw your letter in the waste basket and not to meet with you at all. Your only recourse would have been to refer your case to a hearing officer." Further, Keeney claims no excerpts were included in the letter.

Green then persuaded Keeney to agree to an "informal conference," one that did not include legal counsel, and one in which Green acted as investigator, judge and jury. When the conference took place, tapes of the calls were played. The victim stated she couldn't say whose voice it was. Keeney claimed that, along with his two roommates, people were in and out of the house constantly, and denied any knowledge of the event of persons responsible. No evidence was offered aside from Keeney's name being on the phone bill.

Green, however, continued her investigation of Keeney by going to wrestling coach Ron Finley. On January 14th, after fruitless interrogations of wrestling team members, Green wrote to Finely for help in ferreting out the caller, and implied threats of bad publicity for the team if the coach failed. "If you," she writes, "are unsuccessful in resolving this allegation, the victim is prepared to take action to demand public accountability. I would like to learn the truthwithout the need for such action."

After Finley asked team members, who, according to him, told him Keeney was innocent, he told Green as much in a meeting with Athletics Director Bill Moos. It was at this point that, according to Finley, Green admitted to him she didn't know who the harrasser was. Finley maintains that Green took him to be a liar. Green also stated to Finely and Moos that the accusations were "based solely on the fact that he owned the phone."

A source close to the investigation, who preferred not to be named, said Green stated that regardless of the fact that she didn't know who had done it, "someone would hang for it."

As a last ditch effort for evidence, Green asked Keeney to come in to "help me identify the voice of the caller." IT appears at this point she did not suspect Keeney to be the caller. Clearly, Green had no idea who had made the calls.

Yet incredibly, it was less than a week later that green found Keeney guilty on all charges in what she called a "resolution." Keeney was ordered to write a letter of apology for the calls, put on disciplinary probation, and told to interview counselors who worked with victims of sexual assault. In another letter to Keeney, Green further implied lack of evidence by saying, "it is my hope you could feel empathy for the pain experienced as a result of the calls made from your home." Keeney offered to apologize for not guarding his phone, but nothing more.

Coach Finley, disgusted with the decision, wrote Green a letter saying: "You have lost my respect as a fellow faculty member at this University. I could not sleep at night if I had done something like that. You know he did not make the calls, you admitted that to me." Finley also claims that during the last call, Keeney was in Portland, and can prove it. It is a claim which Keeney's lawyer said was substantiated.

However, James Britt, director of the Office of Student Advocacy dismisses the idea that Finley knew any real facts about the case, apart from Green's admission. "It's a 'circle the wagon's mentality," he said. "This guy was with Keeney day in and day out. Keeney was integral to the team. The coach had a lot invested in him, too."

Preceding the guilty verdict, Keeney's lawyers had sent several letters to Green, all of which went unanswered and were ignored, stating that Keeney was withdrawing his agreement to proceed informally. Under proper protocol, the matter was, at that point, out of Green's hands. Yet she kept contacting Keeney directly, even though Keeney's lawyer wrote her saying "you have the right to refer your case to a hearings officer. You do not have the right to continue to harass my client into solving this case for you."

"After he withdrew his agreement which was well before the verdict," says Parott, "any proceedings against him became invalid, and the decision became an illegal or void order. A clear violation of his due process rights." Provisions for a Conduct Code violation also require a burden of proof called a "preponderance of evidence." This is the equivalence of at least 51%-a burden plainly not satisfied by Green's investigation.

Along with these discrepancies, Green's findings are also problematic on the ground of questionable jurisdiction. Although accused and accuser were both students, the calls were made and received off-campus. The Student Conduct Code states that "in general, the off-campus activities of students are viewed as their personal business." It goes on to state that when a student violates a law while simultaneously violating the Conduct code, on or off-campus, the University can take disciplinary action. It should be noted here that Keeney was never charged with any crime. The University's case depends largely on another provision which allows the University to take action when one student's performance in school is affected by the actions of another student. But for off-campus incidents, under the code which was in effect at the time, "the University does have the power to extend services but [is] not able to help seek a legal resolution," according to then-conduct committee member, Eve Oldenkamp. In an interview with the Oregon Daily Emerald in June of 1996, Green herself called off-campus jurisdiction "very ambiguous."

Keeney's lawyers point to an unrelated case from April 1997, in which Green declined to discipline a student because of jurisdictional restrictions. She writes to the accused: "Since the incident took place off-campus and not at a University sponsored or supervised event, this case against you is being dropped."

Assistant Attorney General Ken Barnes, who is representing the University, said that besides asserting that the calls interfered with the woman's school performance, the University will also argue that Keeney missed a stature of limitations for filling his Petition for Review, which Barnes said was six weeks from the date of the decision. But according to James Britt, the limit for filing a petition is six months, not six weeks. Asked about evidentiary details against Keeney, Barnes mentioned again the flimsy circumstantial reasoning he gave to the Emerald: "[because] some of the harassing calls occurred between 3 and 3:30 a.m., it was unlikely a person not living in the home made the calls."

James Britt, who has heard a tape of some of the calls, says they were without a doubt racist and sexist. "The caller was speaking in a feigned Chinese accent, pretending to be [Eugene city] councilman Bobby Lee, saying things which were sexually offensive. You could hear about 10 voices in the background laughing and joining in. I think it fully warranted going to the authorities," he said. But here Britt stresses that the law enforcement community, not the University, was the place to go.

So who did make the calls? More than likely we will never know, short of an admission, as proof appears to be elusive. Admittedly, it is not difficult to imagine a group of drunken wrestlers making obscene phone calls at 3 a.m. However, it is also necessary to prove guilt for legitimate justice. And apart from fairness, the issue of the effectiveness of campus justice remains. For the woman to whom the harassing calls were made, there has been justice at all.

The questions surrounding the University's judiciary system are not endemic to the University of Oregon. Keegan Federa, an Atlanta lawyer who successfully won a Georgia Supreme Court case that opened the University of Georgia's internal judicial system to public scrutiny, sees the administrators as a fourth judicial branch without accountability.

"What we've got here is people selected by a process we don't know about and sit in on hearings that are secret and make decisions affecting people's lives and freedom and careers, and nobody know about it. Frankly, it scares the hell out of you when you read [examples of] it," he said.

In May 1996, the New York Times attacked these systems as ineffective and unfair. "Though college officials say victims are always free to seek redress in the real courts, may prosecutors complain that campus justice systems usurp and undermine such cases before they get a crack at them."

Jeffery Newman, an attorney and a member of the non-profit organization Security on Campus, says that the same college personnel advising victims of their options have a potentially conflicting need to protect the institution from bad publicity and liability. As a specialist in student litigation, he say that colleges actively dissuaded many of his clients from pursuing criminal charges.

In the Keeney case, the same seems to have been truer. Britt claims that the victim was advised not to press charges by University officials, although he declined to say by whom. And while most University officials aren't talking, it doesn't surprise Britt. "President Frohmayer was attorney general for years. I think he's issued the "Loose Lips Sink Ships' order, telling faculty not to discuss the litigation."

Weston Morill, Dean of Student Life, said that one of the reasons for enforcing the code is the University's fear of liability. "if a student is a victim and the University fails to protect that person, we're open to lawsuits."

Under the new student conduct code passed last May, jurisdiction is extended to victims not attending the University if the University can show that the student defendant poses a threat to the community. All this begs the question where the line is to be drawn.

"How far does the 'long arm' reach," asks Britt. "Are we going to build jails or prisons on campus, or discipline students studying in France?"

The ASUO Women's Center has issued a statement supporting off-campus jurisdiction, but Britt says that's missing the pint. "It's not a safety issue. Everyone has the right to be safe. It's just not the University's job. That's what the police are for, that's what we pay them for. The place for justice is the civil and criminal courts."

Chris Kenning, a Senior majoring in Journalism, is a staff writer for the Oregon Commentator