Guilty If Charged

This fall on the campus of the University of New Hampshire there suddenly appeared a set of five dramatically large posters that spelled out the sins against which war would be officially waged. “Sexism has no place at UNH,” one poster said. “We seek not only to be a diverse community but a caring one.” Below that, in boldface print the poster said: “Tell someone. File a complaint,” and it listed telephone numbers by which students and faculty could inform against malefactors in their midst. Other posters of exactly the same format urged students to complain about racism, homophobia, discrimination, and religious persecution.

These evils, of course, have no place at any university, but questions have been raised whether the campaign to combat them fosters a tolerant community at the University of New Hampshire. Last spring at UNH, a clash of opinions took place over a proposal to expand the university’s official policy on harassment to include not only sexual behavior but any remarks that created “a degrading, intimidating or hostile environment.” I spoke to Chris Burns-DiBiasio, the director of the Affirmative Action Office and the policy’s principal author, who argued that the code would result in no overzealous prosecutions. Harassment, she assured me, “must involve a pattern of repetition such that a reasonable student would be offended.” “Reasonable student” seems the key term. One case at UNH that has now reached the courts in the form of a lawsuit charging the university with wrongful dismissal shows that aroused students and an administration that encourages people to become informers cannot always be counted on to be reasonable.

The case involves J. Donald Silva, a tenured professor of English who has taught at UNH for thirty years and, as it happens, is also the pastor of the Congregationalist Church on Great Island, a couple of miles from Portsmouth. Silva is fifty-eight years old, the grandfather of four; he has an MA in English from UNH and has published just two articles, both of them about the Portuguese island of Madeira. Until his recent troubles, he was a full-time teacher in the Thompson School of Life Science, a two-year college attached to UNH, most of whose students are preparing for careers in such subjects as animal science, forestry, and horticulture. Silva was part of a tiny humanities faculty at the Thompson School. Every other semester he taught three or four sections of a mandatory course on technical writing, with about twenty-six students in each section.

The sexual harassment charges against him began in one technical writing class early in the spring of 1992 when Silva was trying to explain the concept of “focus” to his students. “Focus is like sex,” he said, trying, he told me later, to capture what he perceived to be the students’ flagging attention. “You zero in on your subject. You seek a target. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one.”

A couple of days later, Silva was giving an example of a simile to the same class, and he chose an expression that seems a bit odd coming from the longest-serving pastor in the threehundred-year history of the Great Island Congregational Church. More than twenty years ago, Silva says, he gave his wife a phonograph record called “How to Belly Dance For Your Husband,” a record accompanied by a brochure with the same title, authored by a certain Little Egypt. The brochure contained a line that inspired an example Silva has used in class from time to time, including on February 26, 1992, as an example of a simile: “Belly dancing is like jello on a plate with a vibrator under the plate,” he told his students.

Some women students took offense at these two remarks saying such sexual references made them extremely uncomfortable. A few of them went to a class taught by a faculty colleague of Silva’s, Jerilee Zezula, the head of the animal science program at the Thompson School, and told her what Silva had said. Zezula, according to her own notes of her meeting with the students, which were later turned over to Silva and his advisers, told them that they had a “legitimate complaint” and asked them “how far they wished to go with this.” Within days eight women had filed “To Whom It May Concern” letters describing what they felt was Silva’s offensive behavior, sending them to Neil B. Lubow, the university’s associate vice-president for academic affairs.

The matter was quickly reported to the university’s Sexual Harassment and Rape Prevention Program (SHARPP), a very active and prominent campus advocacy group created in 1988 by the administration whose several duties include receiving complaints of mistreatment from women on campus. On March 3, five days after Silva’s second classroom comment, an informal hearing was held in Lubow’s office at which Silva was confronted with the evidence of what now was being called sexual harassment, all of which was provided in the letters submitted by the eight female undergraduate students.

I telephoned several of these women, none of whom agreed to talk to me. I spoke to a secretary at the Thompson School, who said that Zezula would not speak to me either. Silva and one of his faculty advisers told me that, in hearings later held on the case, students testified that Zezula encouraged the women’s recourse to judicial action against him and that she also solicited complaints about Silva from other students in her own classes, and I wanted to ask her about this. I was also unable to ask the women what actual harm they felt Silva had done them with his classroom comments. I did obtain copies of the women’s written complaints, however, which served as the basis for the long prosecution of Silva that was to follow.

One woman, Holly Alverson Woodhouse, who submitted three letters altogether over a period of ten months, said that she felt “degraded” by Silva’s “vocabulary and insinuations” in class. “If he wants to make a point that we’ll remember, certainly a Proffessor [sic] of English can find enough vocabulary to draw from without needing to use the visualizations he chooses,” she wrote. Another of the women, Rachel Powers, said, “There is a border of what is tasteful and what is unacceptable and offensive Don since has greatly crossed this border.”

Another student, Robyn Ferreira, recounts an argument she had with Silva immediately after his remarks in class, which she termed “very unappropriated [sic] and also very affending [sic].”

Well then he went back to the bowl of jello and the vibrator and that he knew allot [sic] of people who used it to massage there [sic] muscles and that he was one of them. I told him that he was wacked because there are allot [sic] of other little massages their [sic] that do the same thing.

Some of the women wrote complaints accusing Silva of harassment outside class as well, most of it occurring on what appears to be a single day in the library. Woodhouse, for example, recounts how she was there with Silva and several other students. One of them, Nicole Libbey, talked about getting started on an assignment and said, “I guess I’ll jump on a computer before someone else does.” Woodhouse reports: “Don Silva smiled and said, ‘I’d like to see that!’ We all laughed a bit uneasily & wandered off.”

Woodhouse goes on to say that later, still in the library, “I was on the floor in the card indexes looking up books. Don Silva stopped, saw me on my hands and knees pulling out a floor level card index. Kate & Nikki heard him say to me, ‘You look like you’ve had a lot of experience on your knees.”‘ Silva, who does not deny having spoken to Woodhouse, remembers his words as: “You look like you’ve had a lot of experience doing that.”

Two other students, Jamalyn Brown and Denise Kohler, wrote a joint complaint, accusing Silva, apparently, of implying that the two of them had a sexual relationship. According to the students, Silva asked them, “How long have you two been together?” Silva remembers saying, “How long have you two known each other.” Yet another letter is from Kimberly Austin. She and a male student overheard Silva administering a spelling test to a third student. “Myself and the male student went into his office and there heard him using sentences with Sexual Slants,” Austin writes. “I don’t remember the exact words. One out of every three sentences had a sexual slant.”

Those were the reported actions of Silva, perhaps tasteless or inappropriate ones, in some cases showing a middle-aged man doing nothing more offensive than trying, clumsily, to banter with his students. He seems to have foolishly wanted to appear to be “hip.” But from the beginning, the UNH administration chose to see Silva’s remarks in exactly the same way that the women students saw them, as unmistakably sexual in content and as instances of harassment. In March, Brian A. Giles, the dean of the Thompson School, while he did not talk to Silva as part of any investigation he may have made, wrote a letter informing him that his “pattern of sexual remarks in and out of the classroom has created an intimidating, hostile, and offensive academic environment that has substantially interfered with [the students’] educational experience.” The proposed punishment involved several requirements, the most important being that Silva undergo a year of “weekly counseling sessions” with a “professional psychotherapist approved by the university.” Silva was also required to reimburse the university for $2,000 to cover the cost of setting up an alternative section of his course to accommodate the students who could no longer study with him. Finally, Silva was required to apologize, in writing, “for creating a hostile and offensive academic environment.”

Silva says that he was willing to apologize to the women for any offense he had given them, but he denied having sexually harassed them. Others at UNH reasoned that even if Silva had suffered a lapse of judgment in his remarks in class, those lapses had not created an “offensive learning environment” and should have been protected by Silva’s right to academic freedom.

“What you have here,” said Chris Balling, a professor of physics who served as an adviser to Silva during his ordeal, “is a professor who probably exercised poor judgment in searching for a way to grab students’ attention. I don’t know anyone who doesn’t think it was a mistake, but I don’t see how one can construe it as sexual harassment. The classroom remarks were not directed specifically to the individuals who complained. He said them each once. He was not warned that these particular students took offense. He was just immediately hit by a formal harassment charge. Yet to harass somebody you have to go at someone more than once, it has to be individually, and you have to know it is offensive and yet keep on doing it.” Certainly, several important details in the sexual harassment charges suggest a spirit of overzealousness was in the air. For example, the student who was going to jump on the computer, Nicole Libbey, was not the one who filed a complaint against Silva and in fact she testified in his behalf at the formal hearing. But Holly Woodhouse, who overheard Silva’s comment to Libbey, reported it as an instance of harassment. As for Woodhouse’s complaint regarding Silva’s remark to her when she was on her knees at the card file, she acknowledges that she was informed of it by two other women. She did not hear it herself.

So too with Kimberly Austin’s report of overhearing Silva’s spelling test. The person who actually took the test did not complain about it. In addition, the male student who was with Austin at the time, Robert Wardleigh, testified at Silva’s hearing later that he heard nothing with a “sexual slant.” Yet, nearly a year later when a formal hearing took place, all three incidents remained prominent in what was called “findings of fact,” the conclusion of the university apparently being that one can be harassed even when the harasser is talking to somebody else.

Silva, despite this, rejected Giles’s reprimand, and thus in June Giles, who still had not talked to Silva as part of any investigation he conducted, suspended him, a tenured full professor, from teaching. The suspension was short-lived because Silva appealed to a faculty grievance committee, which found in his favor, forcing the university to reinstate him and to go through the procedure that exists when accusations of sexual harassment are concerned. The procedure had not been used before because all the others accused of harassment accepted what Burns-DiBiasio called an “informal resolution” of the charges against them. The first step in the procedure involved a formal complaint from seven of the eight students who originally complained, and who wrote to Lubow in November 1992.

“In light of the seriousness of the initial offense and his behavior since then, we would like to see Mr. Silva’s position and tenure at UNH terminated,” the women wrote. “We feel it is imperative that the University implement mandatory Sexual Harassment/Assault education for all incoming students, not just freshmen, as well as for all faculty.”

The main event of the university’s procedure is a hearing before a sexual harassment hearing panel, whose five members, Burns-DiBiasio told me, are chosen and given training by her. As head of of the Affirmative Action Office, she also led the administration’s effort to draft a new, expanded policy on harassment this past spring. Burns-DiBiasio, who emerged as a key figure in Silva’s case, is an example of a new type of specialist to be found at many universities. She has never been a member of a university faculty but has made a career in what she calls “equity issues,” meaning, she told me, explaining and implementing Title VII and Title IX of the Civil Rights Act, the provisions involving discrimination and harassment. DiBiasio has a master’s degree in education from Montana State University, worked on “equity issues” for the Department of Health, Education and Welfare during the Carter administration, and has headed the UNH Affirmative Action Office since its creation in 1989.

Burns-DiBiasio told me that she maintains a “pool of people,” proposed to her informally by various campus organizations, from which harassment hearing panels can be chosen. Acting on behalf of the university’s president, she then chooses the specific members of each pool and oversees their training, which, she said, involves briefings on recent court cases and the current state of the law governing discrimination.

The panel drawn together to hear Silva’s case on February 2, 1993, involved two associate professors, a data analyst, and two undergraduate students. The chairperson was one of the students. The panel met for more than nine hours during which Burns-DiBiasio from time to time talked privately with the five panel members outside the hearing room. I asked her about these private sessions. She acknowledged that they had taken place but said they were over procedural issues. Silva and Silva’s adviser, a physics professor emeritus named John E. Mulhern, Jr., who says he had all of twentyfour hours to prepare for the hearing, believe, they told me, that the private meetings showed Burns-DiBiasio had an entirely too cozy relationship with Silva’s judges. At the hearing itself, the student complainants were represented by a SHARPP counselor, Jane Stapleton, who led each of them through a lengthy recitation of Silva’s offenses. Lubow, Giles, and Zezula testified against Silva, even though none of them had ever actually witnessed anything that Silva was accused of doing.

Five students, including Libbey and Wardleigh, testified on Silva’s behalf; another female student, Danielle E. Foley, submitted a sworn statement describing Silva as a “thoughtful lecturer” who “makes a point of speaking with his students in an informal and pleasant manner,” and who never “conducted himself in a manner that could in any way be construed as sexually harassing.” Nonetheless, the panel’s written judgment was that “a reasonable female student would find Professor Silva’s comments and his behavior to be offensive, intimidating and contributing to a hostile academic environment.”

A few weeks later, an appeals board was convened, whose members, three from the faculty and two students, were appointed by the same university administration, including Burns-DiBiasio, that appointed the first panel. (The official policy provides that “appointment to the board will be made with consideration to relevant experience, knowledge of affirmative action and sensitivity to the issue of sexual harassment.”) The chairperson of this board was later a supporter of Burns-DiBiasio in the attempt, so far not successful, to promulgate an expanded harassment policy.

This second hearing was an emotional affair, lasting nearly thirteen hours, until about 1:00 AM on March 30. At one point, according to both Silva and Thomas Carnicelli, an English professor who served as his counsel during the appeal, one of the women, Kimberley Austin, who had overheard the questionable spelling test, suddenly got up from the table, lurched toward the door, and fell to the floor. Another young woman supported her and the two of them staggered out of the room together. At another point, Holly Woodhouse said that it’s not your ordinary household that has a bowl of jello and a vibrator. Silva, unwisely perhaps, says that he muttered “especially jello” into Carnicelli’s ear, his private remark surely the sarcasm of an aggrieved man who felt he was being persecuted and needed to vent his sense of the ridiculousness of the situation. The representative of SHARPP, however, jumped to her feet and accused Silva of having said that every girl ought to have a vibrator. With that, several of the women complainants said they heard the same thing, and so did one of the members of the hearing panel. Carnicelli says that Silva spoke so softly that even he did not hear what Silva said. But the incident made him feel that the impulse to ferret out the sinfulness of every one of Silva’s gestures was going to prevail over a commonsensical examination of the evidence.

The appeals panel found against Silva, citing him for “repeated and sustained comments and behavior of a sexual and otherwise intrusive nature [that] had the effect of creating a hostile and intimidating academic environment.” The panel imposed a penalty more severe than the one specified in the university’s initial reprimand. Not only was Silva required to “begin counseling sessions at his own expense, with a licensed and certified counselor selected by the University”; he was also suspended without pay for “at least one year.” His office and even the carrel assigned to him in the library were taken away.

How could so harsh a punishment be meted out for so ambiguous an offense? One possible answer to that question of course is that Silva really did commit sexual harassment and the two panels were correct in their judgment. Since Silva has now filed suit in federal court claiming violations of his First Amendment rights (the case will probably not come to trial until well into 1994), that question may get at least a legal answer.

But it is important to note that throughout all of this, there was not a single charge against Silva of physical contact with students, no invitations to meet women after class, no fixed staring; nobody alleges that there was ever a single private encounter between Silva and any student. In what they call their “findings of fact,” the two hearing panels merely accept the women’s interpretations of Silva’s words and actions as though the mere fact that they felt the way they did was proof of harassment. There was no attempt to deal seriously with any of the underlying issues, particularly whether the two offending remarks made by Silva in class would be so disturbing to a “reasonable woman” that Silva’s academic freedom could justifiably be overridden.

The charge that seemed to evoke the most anger was the one in which he talked of belly dancing and of a vibrator under a plate of jello. Well before the formal hearing, Silva told me, he sat down with two of the offended students to discuss the charges against him.

“I don’t want you to use the word vibrator in class ever again,” Silva quoted one woman as saying to him.

“What’s wrong with that word?” Silva asked.

“You know that a vibrator is a sex toy,” the woman replied.

“I do?” the astonished Silva told me that he replied. “I thought it was a massager.”

I called several people in the UNH administration to try to find out how they justified their handling of the Silva case. Lubow, the associate vice-president for academic affairs, said that I should realize that the law’s definition of sexual harassment specified that it could occur with mere words that created a “hostile environment,” and that action was not required. However, he said, he could not discuss the Silva case, much as he would like to, because the university policy forbade comment on disciplinary matters. Brian Giles, the dean of the Thompson School, refused to discuss the Silva matter with me at all, referring me to the university’s general counsel. This person, Ronald Rodgers, reiterated the university’s confidentiality requirement, but he expressed confidence that the university would prevail in the pending legal action. Burns-DiBiasio spoke to me about harassment in general but not about the Silva case in particular. She did say that there were elements of the Silva case that I apparently did not know about, specifically a problem with Silva’s behavior in the past, which is what led to the harshness of the penalty levied against him.

Burns-DiBiasio would not say what these earlier misdeeds on Silva’s part had been, but Silva himself had already told me that, in 1990, four women had complained against him for telling sexual stories and making racist remarks in class. In a speech class, giving an example of rhythm and cadence in poetry, he had read aloud Vachel Lindsay’s “The Congo,” which today could certainly be seen as a racist poem. Another time, he made a joking reference to an Ann Landers column about a man who tied his wife to the bed and then knocked himself out playing Batman in an effort to leap to her from atop the dresser. Up-braided by Giles at the time, Silva apologized to the entire class for any offense that he had given. That may have been a mistake so far as his future was concerned, since his decision not to contest the charges was treated as an admission of guilt, which became part of Silva’s permanent record. The university then used his record to remove him from the classroom.

And so, the question remains: how could the “reasonable people” of the hearing panels have found Silva’s behavior so egregious as to warrant suspension?

Balling and Carnicelli, trying to answer that question, both cite what they call “the climate” at UNH, in which the growing harassment bureaucracy encourages an exaggeration of the sense of aggrievement and victimization on the part, especially, of women. Balling takes a certain perverse pleasure in an example given by Burns-DiBiasio of the kind of statement that would have been proscribed in the draft policy on harassment she favored in the spring. The minutes of one meeting show her saying, “In the classroom, a faculty member repeatedly comments that women are not cut out to be scientists, because they do not have the motivation to succeed as men do.” That would be an opinion, Balling argues, a very unpopular one, an incorrect one, but one whose expression should be protected by academic freedom.

In my own visit to the UNH campus, I encountered other instances of the climate affecting matters of sex and sexuality. On bulletin boards all over campus, for example, were posters asking “What Is Rape Culture?” and signed by an organization called Against Rape Culture. I visited a counselor at SHARPP, Michelle LeGault, and asked her about the numbers of women who had come to her organization for help. “We had 130 sexual assault survivors and significant others,” LeGault told me, giving figures on the number of women who had used SHARPP’s services in the previous year. Among them were seventy-three “sexual assault survivors” and thirty-five “child abuse and incest survivors.” I asked if the women given the “survivor” designation were found to have actually been victimized or if they just said they had been victimized.

“If a person thinks she’s been victimized,” LeGault said, “we’re here to validate that experience.”

Few on campus are willing to risk being viewed as “soft” on harassment by contending that the atmosphere has become oppressive. When, for example, Silva’s lawsuit got publicity in the local press, UNH’s president, Dale F. Nitzschke, took care to publish a reassuring statement in the student newspaper that, while his commitment to free speech remained unwavering, the university “will continue to vigorously enforce its policies” on sexual harassment.

In the spring, the executive committee of the American Association of University Professors at UNH came out against the draft policy on harassment being promoted by Burns-DiBiasio, arguing that it would violate the First Amendment and academic freedom. This prompted Barbara White, an associate professor of women’s studies, to circulate a letter to several campus organizations. It said in part:

The AAUP, indeed, academia itself, has traditionally been dominated by white heterosexual men and the First Amendment and Academic Freedom (I’ll call them FAF) have traditionally protected the rights of white heterosexual men. Most of us are silenced by existing social conditions before we get the power to speak out in any way where FAF might protect us. So forgive us if we don’t get all teary-eyed about FAF. Perhaps to you it’s as sacrosanct as the flag or the national anthem; to us strict construction of the First Amendment is just another yoke around our necks.

Professor White is coordinator of the women’s studies program at UNH, and one wonders how she manages to hold a position of such apparent influence at a tax-supported state institution even as she is silenced by existing social conditions. “Where do any of us who aren’t white heterosexual men find relief from the discrimination we continually meet at UNH?” she asks, ignoring the extensive network of boards and organizations that the university has set up to provide relief.

“The meaning of the Silva case,” Carnicelli told me, “is not that a bunch of zealots got together and packed the hearing. The meaning to me is that a perfectly decent group of people, because of the climate, or the way they were trained, or something, made this incredibly unjust decision. Even the good people can’t see clearly anymore.”

Or, as Nicole Libbey, the student supposedly harassed by Silva but who actually testified as a character witness for him during his two hearings, put it: “Those women who made the complaints have gone on to live their own lives, and they haven’t been affected by this at all. But they practically ruined a man’s life.”