An Inquiry into Inquiries

The University of British Columbia has suffered an unpleasant string of crises since the sudden resignation of Arvind Gupta as President in August 2015. The furore occasioned by his unexplained departure was rapidly followed by allegations that the Chair of the Board of Governors had interfered with a faculty member’s academic freedom and by the resignation of that Chair of the Board. More recently the University has seen a documentary on national television alleging that University neglected to take seriously complaints of sexual assault; the bringing of a 10-million dollar lawsuit by the federal government for the misappropriation of funds by an Associate Dean in the faculty of Dentistry; and the public suspension of a prominent author and public figure from a university position on the grounds of serious but unspecified allegations.

Each of these individually would be embarrassing enough; taken together, they paint a disturbing picture of administrative malaise. The University has consistently taken the position that the UBC “brand” is strong enough to wear these shocks, but there’s no question in my mind that the University’s reputation has suffered, at least amongst the academic community: people are asking what on earth is going on at UBC, and what the institution proposes to do about its failures as it moves forward.

The sad fact is that we don’t really know what is going on at UBC. Accurate information about Guptagate is hard to come by, and we don’t know all that much about the other scandals either. What we do know, however, is that the university has launched a number of high-profile inquiries in recent months, and these inquiries form the core of the university’s response to the problems that beset it.

So what is an inquiry? More to the point, what is an inquiry not?

An inquiry, in the sense it’s being used at UBC, is an administrative process. The persons involved sit down with a qualified individual (the investigator) and tell their versions of the story; the investigator interviews them and any relevant witnesses, and eventually comes to some set of conclusions which are set down in a report. The scope of the report and the scope of the conclusions are limited by the mandate given to the investigator at the outset.

Inquiries of this kind happen all the time in the workplace. Typically, they are low-key affairs, conducted by the HR Department, perhaps with the participation of a trade union or any other organization that may be involved. The fact of the investigation is not made public, and neither is any report, in accordance with standard labour practices.

The recent inquiries at UBC are of a slightly different flavour. The issues at hand are high-profile and of great interest to the university community. Suitably high-profile outside investigators have been hired to conduct the processes: the Honourable Lynn Smith, who was charged with investigating a complaint of violation of academic freedom, is a former Judge at the Supreme Court of British Columbia, and Paula Butler, who is currently investigating the handling of complaints of sexual assault, is a well-known labour and employment lawyer. The terms of reference of each of these inquiries include the issue of a public summary of the findings and some level of public engagement with the results, since the issues under investigation have serious implications for the future operations and policies of the university.

These sorts of inquiries are not judicial processes in the way that a court case or even an arbitration might be. Generally speaking, the mandate of the investigator is confidential, the participants are not under oath, there may not be any lawyers present, and there is no opportunity for any cross-examination of the witnesses. And if that weren’t enough, the mandate may not include the power to impose sanctions, and it’s not at all clear from the outside what sort of investigation was actually done. The actual report is a non-binding document that belongs to the participants; the only thing the public gets is a summary of the findings, if such a thing was included in the terms (which is the exception rather than the rule).

The point here is that the summary that makes up the only public record of such an investigation is a pretty weak instrument for any kind of public engagement or public policy. It is a purely administrative document, not a judicial decision, and as far as shedding light on the case at hand goes, it may be neither effective nor satisfying. Implementing the findings of such a report are up to the parties, and what happens in practice is anybody’s guess, since the issue of remedy and redress for the facts determined by the investigation is often hived off to a separate and less public process.

The public summary of Lynn Smith’s report on the allegations of violation of academic freedom is a case in point. Justice Smith made the Delphic pronouncement that while no single individual was guilty of violating academic freedom, the collective actions and inactions of a group of persons did have exactly this result, and she points out 3 specific points of failure, without supplying detail. The unfortunate fact is that, no matter how thorough her investigation might have been, the public doesn’t have the context in which to interpret her summary. The university’s response has been predictable – appoint a new adminstrator, and develop new administrative processes.

The public version of the Butler investigation of the complaints of sexual assault is yet to be revealed. Ms. Butler’s mandate does not seem to be public, and it’s hard to predict what her findings will be. My fear is that restorative justice for the complainants will be eclipsed by generalities about administrative process: new policies, new positions, new procedures, but little to transform the underlying culture that that led to the complaints in the first place. It is a sad fact that inquiries are creatures of administrative practice, designed for resolving administrative problems in the workplace, rather than instruments for the delivery of justice.

The good news is that the complainants in the sexual assaults have recourse to other avenues to seek justice. At least one complainant has announced the intention of a complaint before the Human Rights Tribunal, which is an entirely different beast: it’s a public affair, with testimony delivered under oath, and in front of a body with the power to order specific compensation and remedies. As such, it’s a much more powerful (and empowering) venue, and one that is responsive to the needs of the complainant as well as to those of the institution.

To me this is the crux of the issue. UBC is a massive and complex institution, but, more than that, it is a large and complex community of people. We play host to fifty thousand students, to any number of faculty and staff, and increasingly, to people who simply live in the residential buildings that have sprung up across campus. However, it is governed by statutes and process that are cobbled together from the Universities act, administrative law and — increasingly — corporate practice. HR practices such as inquiries are designed to address workplace issues, not core policy and justice questions such as sexual violence, or freedom of expression in a community that’s equivalent to a small municipality.

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