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Guilty If Charged’: An Exchange

In response to:

Guilty If Charged from the January 13, 1994 issue

To the Editors:

As one of the participants in the Donald Silva case at the University of New Hampshire, I am prevented by the requirement of confidentiality from responding freely to Richard Bernstein’s very distorted account of this case [NYR, January 13]. I would, however, like to answer one allegation which is directed at me specifically.

In his article (page 12, column 4), Mr. Bernstein asserts without attribution that I (the chair of the appeals board that heard the Silva case) “was later a supporter of [Affirmative Action officer] Burns-DiBiasio in the attempt, so far not successful, to promulgate an expanded harassment policy.” The relevance of this assertion is not entirely clear, though I assume it is intended to cast doubt on my impartiality and/or good sense. The facts are as follows:

In Spring 1993, a university committee recommended a broadening of our harassment policy to include groups such as racial minorities and homosexuals (presently we have only a sexual harassment policy which mirrors the EEOC Sex Discrimination Guidelines). Ms. Burns-DiBiasio was given the task of presenting this proposal to the Academic Senate. Mr. Bernstein’s use of the verb promulgate (“to make known (a degree) by public declaration; to put (a law) into effect by formal public pronouncement”) is inappropriate. Ms. Burns-DiBiasio did not “promulgate” the proposal, but presented it for consideration. When the Senate failed to agree on either the wording of the policy or whether we should have such a policy at all, a new committee, to include representatives from various points of view, was set up to study the matter further.

Contrary to Mr. Bernstein’s allegation, I had no role in this matter. I was not a member of the committee that proposed the policy, I did not help to write the proposal, and I am not on the committee that is studying the issue now. The minutes show that, as a member of the Senate, I spoke eight times in five discussions of this topic—four times (being a linguist) to point out misreadings of the proposal; twice to argue for the settling of disputes informally, whenever possible, rather than by formal hearings; once to point out the distinction between statements with intellectual content, which should be protected, and other sorts of verbal behavior such as name-calling, jokes, and the like; and once, at the end of the meeting, to propose a resolution, which passed unanimously, affirming the Senate’s concern for both free speech and respect for diversity on our campus and our desire that the Senate should be involved in any decision on this matter. This is the only connection I have had with the formulation of harassment policy at UNH.

Although this bit of bad reporting is unimportant in itself, it serves as an illustration of Mr. Bernstein’s carelessness with the truth, which pervades his entire article. His description of the Appeals Board hearing is another case in point. It is true, as Mr. Bernstein reports, that one student became ill during the hearing and ran out of the room. (She certainly did not “fall to the floor”!) The other students explained that she is diabetic and sometimes has dizzy spells. One student went out to help her and both returned a few minutes later. To use this irrelevant incident to impugn the testimony of this student, as Bernstein does, is more than bad reporting; it is unethical. As for the dispute which arose involving a remark by Prof. Silva during the hearing, both the context of the remark and its alleged wording are misreported, and the board’s handling of the dispute, which is, after all, the only important issue, is not discussed. Notice, moreover, that even if we accept Bernstein’s version of the story, which seems to have come from Silva himself, the remark does Prof. Silva no credit, since it shows him ridiculing his students’ (sometimes inarticulate) testimony rather than listening and trying to understand what went so badly wrong in his classes.

The issue that underlies the Silva case is important and difficult: where to draw the line between the right to free speech and the right of people to go about their business without discrimination and harassment. Discussion of this issue would benefit from honest, unbiased descriptions of real-life cases. It is unfortunate that that is not what The New York Review has chosen to provide.

Mary M. Clark

Professor of English

The University of New Hampshire

Durham, New Hampshire

To the Editors:

In response to your article “Guilty If Charged” by Richard Bernstein, I’ve received several phone calls from faculty and students formerly at the University of New Hampshire (UNH). The callers tend to be half angry and half convulsed with laughter at Mr. Bernstein’s unrecognizable portrait of their old home. Could UNH, that bastion of conservatism, the lily-white campus which has gained national attention for its rape cases—could UNH really have changed so much in the past year?

I explain that the posters must have done it—you know, the giant campus placards that sacred Mr. Berstein with their nasty “pc” sentiments like “Sexism has no place at UNH” and “Racism has no place at UNH.” In his first paragraph Mr. Bernstein tells us that the posters “suddenly appeared” on campus, are “dramatically large” in size, should be considered weapons in a “war,” and are turning students into “informers.” So I figure the posters must be pretty powerful. Actually they’re 11 inches by 17 inches, rather small for a poster, but this sort of exaggeration and biased language permeates Bernstein’s entire article. The “dramatically large” poster also serves as a metaphor for the projection that typically occurs in accusations of “political correctness”: the inventors of “pc,” fearful of losing sexual and racial dominance, project their own desire to silence opposition on to others whom they then claim want to silence them.

I had naively thought that journalists seek something called “balance”; at least when I make a statement like “Women are human beings,” I’m used to being cautioned that the opposite point of view will also be solicited. So I looked hard for balance in “Guilty If Charged,” but alas, there was none to be found. The whole thing is a brief for Mr. Silva, the poor innocent professor struck down from a twenty-year career of slips of the tongue and other “mistakes.” Those who would oppose Silva are made to look ridiculous, especially if they are mere students, a group for whom Mr. Bernstein shows little sympathy or respect. Significantly, we hear a great deal about Silva’s rights and nothing about the rights of students.

If Mr. Bernstein had truly wanted balance, he could have telephoned me for a comment on the statement he quotes out of context from a letter I wrote the local AAUP (a letter which, incidentally, had nothing to do with the Silva case). He might even have asked for permission to quote, and he could have discovered his error in identifying me as coordinator of the women’s studies program at UNH. But neither ethics nor accuracy seems to be Mr. Bernstein’s strong suit.

By the way, as a book review editor myself, I have to ask: What book was Mr. Bernstein reviewing? I guess it must be one he made up.

Barbara A. White

Professor of Women’s Studies

University of New Hampshire

Durham, New Hampshire

Richard Bernstein replies:

I certainly agree with Professor Clark that there are important issues raised by the Silva case. That is why it is disappointing to learn that the rules of confidentiality prevent her from talking about the “real-life case” in which she had a part. Instead, she claims that, on a few peripheral aspects of the case, my account was mistaken. I do not believe that it was.

She argues, to begin, that I got the facts wrong on the university’s efforts to expand the existing harassment policy. If I had said that the administration had actually promulgated a new policy, I would have been incorrect. But, as she herself notes, I wrote only that what was involved was an “attempt to promulgate” a new policy, and this was an accurate description. There is no doubt the administration wanted its proposal to expand the existing harassment code (under which Silva had been fired) to be approved by the faculty and applied in practice. I made it clear, as she does, that the new measure was not adopted because it failed to receive sufficient support from the faculty.

Clark claims that she played “no role” in the matter of the expanded code; but she acknowledges that she spoke about the matter some eight times in five meetings and this suggests she had some role. Did she give support to Ms. Burns-DiBiasio? I believe that the minutes of the May 3, 1993, faculty council meeting show that she did. During that meeting, some faculty members, addressing themselves to Burns-DiBiasio, objected to her proposal on the grounds that it would end up being misused, so that it would punish as instances of harassment merely offensive remarks or unpopular opinions. Burns-DiBiasio tried to allay this concern, assuring the faculty members that the proposed code would only be addressed to “certain kinds of behavior that we should not tolerate.”

Shortly after this comment, Clark made one of her eight interventions, saying, according to the minutes of the meeting: “In this discussion, we have heard talk about this policy being directed against speech that hurts feelings or is offensive; but that is not what I read here. This says this is directed against behavior which ‘creates a persistent degrading and intimidating environment,’ which sounds like something much more serious than language that simply hurts feelings or is offensive.” In other words, Clark seemed to be saying that Burns-DiBiasio was correct in her interpretation of the likely effects of the proposed code; in the context of the faculty debate, that sounds like support of Burns-DiBiasio’s position to me.

Concerning the appeals board hearings, I reported what happened, “according to both Silva and Thomas Carnicelli, an English professor who served as his counsel.” In view of the expressed unwillingness of all those on the university’s side of the matter to speak to me about the case, it seemed entirely reasonable to cite their account. I checked with them on the main point disputed by Clark, whether the young woman actually fell to the floor or only became ill and had to leave the room. Silva stands by his recollection, saying that he saw the young woman fall to the floor and being helped up by one of the other students. The woman was the student who alleged there were “sexual slants” in a spelling test she overheard Silva administering. As Carnicelli remembers it, she became disturbed and left the room just after a student testifying in favor of Silva contradicted her account of that incident. Neither Silva nor Carnicelli remember students informing the panel that the woman suffered from diabetes and had dizzy spells.

Clark’s views on Silva’s whispered comment are interesting beyond her disagreement about what happened, for they typify the attitudes toward Silva that caused his suspension: to interpret everything that he said in the worst possible light, to remove it from the category of mere offense, and to place it in the category of punishable harassment. First, Silva was condemned for a somewhat crude comment about belly dancing. Now, in her letter, Clark also condemns Silva’s brief, whispered comment during the hearing as “ridicule.” It should be recalled that Silva thought he was being unjustly accused, and on absurd grounds. In Clark’s view, is an accused person required, under those circumstances, to be at all times reverentially polite to his accusers? And, if the accused teacher makes a caustic remark to his counsel, does that mean that he is guilty of the charges being pressed? Clark’s version of this small incident gives credence to the view of Carnicelli, who, after observing the panel’s reaction to Silva’s comment, felt that he would not get a dispassionate or fair hearing.

Clark’s concerns, as I have said, involve peripheral matters, though not as peripheral as those brought up by Professor White, who criticizes me for describing the 11 by 17 inch posters put up to invite complaints of harassment as dramatically large. When I visited the university last winter, most posters and notices of events I saw were on stationery size paper, and the anti-harassment posters seemed large by comparison. Faculty members told me that during the fall two or three or more posters were often placed next to one another, and, that with their large black letters, they did indeed have a dramatic effect.

White also criticizes me for not asking for her permission to quote from her letter, but since she sent copies of it to six campus organizations including the faculty senate, she had, I thought, made it clear that she did not intend it to be considered as a private communication. She says I am mistaken in calling her coordinator of the women’s studies program, which mystifies me because at the bottom of the letter from which I quoted, she identifies herself as the holder of two titles: “Assoc. Professor of Women’s Studies” and “Coordinator, Women’s Studies Program.” Finally, I quoted verbatim four of the six sentences from her opening paragraph, after describing the position of the American Association of University Professors to which she was replying; so it would seem impossible by definition for me to have taken anything out of context. I might add that White’s account of my article, with single words quoted here and there, is an excellent example of what she falsely accuses me of doing—quoting somebody out of context.

It is too bad that neither Clark nor White sees fit to go beyond minor points and to deal with the central issue: whether free speech in the classroom should be restricted when words such as those used by Silva are interpreted as sexual harassment. Clark could have tried to explain her vote as chairperson of the appeals board, which found a classroom remark about belly dancing so grave an offense that it justified expelling Silva from the university and, in effect, destroying a thirty-year career as a teacher. But until she, or somebody else on her side of this question, explains how Silva’s remarks could be taken as sexual harassment, her position, and that of the university, would seem to be this: A university can freely fire teachers for whatever comments they might make, provided that a committee, chosen and instructed by that same university, finds those comments offensive. And, as Silva’s lawyers point out in one of the legal papers filed in his suit against the university, this can be done without regard to the professor’s tenured status and even if the professor has been given no notice that the comments in question are prohibited.

Alas, on this matter, Clark and White, like so many others at the University of New Hampshire, remain silent.

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