Saturday, July 13, 2013

Going to Court: The Fragile Legitimacy of Bureaucracies and Due Process Institutions

Recently a recently resigned senior faculty member of USC was put in the FBI Most Wanted List, albeit at #500. He was apprehended, since in fact he was not in hiding. Whatever the issue is, one might suspect it influenced his resignation.

But imagine faculty (or senators or representatives) refusing to resign. Political pressure is now being put on the Mayor of San Diego (and former Congressman), who has offered an apology in a YouTube like video. One can begin impeachment and voting procedures, presumably under administrative rules that are deemed fair (at least by someone). Almost always, institutions have not followed their own regulations scrupulously, and often they have be quite varied in their response to similar offenses, the seemingly preferred being slapped, the less preferred being ejected.

In part this is a game of chicken, in part this is a game of hardball. But whatever the offenses and procedures, inevitably, it would seem, the institution turns out to look quite bad, unfair, perhaps vicious, and discriminatory.  In part the problem lies in the mixture of legal procedure with managerial discretion, resulting in what appears to be rotten legality and discriminatory discretion. I am not suggesting the accused person is saintly, but no one expects saintly behavior. But fairness and nondiscrimination is expected of the institution if it is to be legitimate and authoritative.

One must keep in mind that professors are likely to be fluent writers, so if they feel they have been unfairly treated, a book might well emerge. No one on the administration side is likely to write a counter-book. And as usual in legal discovery, emails and documents within the accusers' camp, presumably administrators as well as the harmed, are likely to create a minor or major brouhaha.

Settlements have been the preferred mode of moving forward. But if the accused proceeds to the courts (judicial and public opinion),  the institution rarely comes out well, even if the accused is eventually proven "guilty." Collateral damage, besides on the administrators, are other persons who may have benefited from being positively preferred and discriminated, for now their position is seen as illegitimate. They might still enjoy their position, but it is tainted. They might just go to the bank smiling, but it seems they cannot resist trying to redeem themselves by attacking

A few years ago Justice Clarence Thomas's wife publicly asked Professor Anita Hill to admit that she was not truthful in her testimony. I did not hear what happened subsequently, but all Professor Hill needed do is to be quiet. The evidence offered by others supports Hill and the stains on Thomas's character. I was surprised that Mrs. Thomas went public with such a request, just when the past might have faded. If you find yourself in such a situation as did Justice Thomas, the best you can do is show that you are worthy of the position you have achieved, and never try to prove that the allegations were false.  (Thomas's supporters in the Senate went on with no problems, since whatever Thomas's opponents might have thought, they needed to work with their colleagues. On the other hand, Bork (and it would appear Thomas) could never get over his rejection.)