The press both in British Columbia and across the nation gave great prominence this summer to the sexual harassment case involving Liam Donnelly, the 29-year-old swim coach at Simon Fraser University. The University first fired Mr. Donnelly for sexual harassment and then reinstated him with back pay and the payment of his legal bills up to $35,000 -- all within a period of two months. The Globe and Mail estimated the university's own legal fees at between $50,000 and $100,000 in addition to $12,000 it had promised to the complainant. How did this come about and what effect will this case have on sexual harassment policies at SFU and in other universities?

The case began with a series of complaints from a 22-year-old student, Rachel Marsden, of unwanted sexual attention, intimidating behaviour, and psychological sexual harassment. This complaint was received six days after Mr. Donnelly gave notice that he intended to lay his own charge of harassment against Ms. Marsden.

Simon Fraser is in the process of changing its sexual harassment procedures, but this case was heard under the previous procedures. The complaint was heard in secret. The panel was composed of volunteers: Professor Lou Hafer, an associate professor of computer science, who acted as chair, Sandra Eix a graduate student in physics and an harassment advisor, and Thea Hines, assistant to the Dean of Graduate Studies. Mr. Donnelly's lawyer advised him to refuse to appear and thereby to challenge the validity of the procedures at Simon Fraser. As a consequence Mr. Donnelly did not appear, and the panel proceeded, without him or his lawyer, to hear Ms. Marsden's complaints.

The Hafer panel upheld the complaints and urged that the swim coach be dismissed. When the university eventually released the report, it deleted all but nine paragraphs of the 21 page report, citing the B.C. Freedom of Information and Protection of Privacy Act as to why it had done so.

The Vancouver police declined to prosecute as a case of rape.

At that point Mr. Donnelly stated that he had received bad legal advice and that he had detailed evidence suggesting that Ms. Marsden had harassed him, rather than the other way around. He put this evidence and the testimony of fourteen witnesses in a 28-page letter to the President, Dr. John Stubbs. This material included, according to Mr. Donnelly, explicit photographs and e-mail sent by Ms. Marsden as part of her campaign of harassment. President Stubbs refused to hear this evidence and fired Mr. Donnelly on May 23. The university agreed to ask the Dean and the department to reconsider Ms. Marsden's grade in a course she had not finished. At the time of writing this process had not been completed despite newspaper reports that suggested otherwise. The university agreed to pay Ms. Marsden $12,000. The President shortly thereafter proceeded on a three-month study leave.

That was when the case became a media issue. This was perhaps inevitable given the considerable prominence in the media in British Columbia in recent years of the battles over alleged sexual harassment in the political science departments at the University of British Columbia and the University of Victoria.

Mr. Donnelly and his supporters argued that the President should have heard the new evidence. Questions were raised about the competence of the panel and the fairness of the procedures as well as the secrecy of the proceedings. It was suggested that the root of all this was a longstanding quarrel between the Marsden family and Mr. Donnelly over his coaching style when both were with the Hyack Swim Club.

The media was overwhelmingly on Mr. Donnelly's side. Trevor Lautens in the Vancouver Sun attacked what he called outrageous sexual harassment courts. Margaret Wente in the Globe and Mail wrote of "campus follies at SFU" where the administrators "...have allowed the harassment vigilantes to run amok, wreaking havoc on people's reputations and livelihoods." She argued that, while sexual harassment policies had been necessary twenty years ago, they no longer were relevant since the mores of the universities had changed. However, Clayton McKee wrote to the Vancouver Sun to complain that the public had been given a one-sided story because the Marsden family would not participate in "the media circus." Ms. Paddy Stamp, the Sexual Harassment Officer at the University of Toronto, suggested in the Globe and Mail that the media's campaign against university sexual harassment policies was part of a backlash against a movement for real equity for women, for the subordinate in hierarchical organizations, and for the historically disadvantaged.

The British Columbia Civil Liberties Union criticized the sexual harassment policies at Simon Fraser. Its president, Kay Stockholder, said she had concerns both about the old and the new sexual harassment policies at SFU. "A university," she said, "should take the risk that some mild forms of harassment might slip through so as not to cast a healthy chill on academic freedom or transform ordinary features of campus social life into offences."

Mr. Donnelly's second lawyer, Lorly Russell, speaking to the Vancouver Province after the case was closed, said that she was appalled that the university policy offered no penalty for people who make false accusations or perjure themselves during a hearing -- and that witnesses could not be compelled to testify. She wondered about the chilling effect of harassment policies on free speech and thought at the universities.

In early July Professor Hafer defended his panel in an interview with the Vancouver Sun, arguing that the panel made a sound decision based on the evidence before them. He also rejected the idea that the panel was ignorant of administrative law and natural justice, noting that it had been advised by university lawyer Anita Braha, and the then sexual harassment coordinator. This information produced immediate complaints of conflict of interest from several members of the British Columbia legal community who argued that it was wrong for Ms. Braha to advise both the panel and the President since the President was acting as a single person appeals board in regard to a decision of the panel. The acting President of the University then stated publicly that Dr. O'Hagen had had a friendship with the complainant, and that Ms. Marsden had been shown the judgment before it had been seen by the President. Dr. O'Hagen denied any impropriety on her part.

Replying to the media, CAUT President Professor Bill Bruneau said that in his opinion the university should not substitute itself for the courts in serious criminal cases. Nor should it offer payment to complainants in sexual harassment cases except for actual costs such as the fees involved if a student had withdrawn from a course because of alleged sexual harassment or for legal fees if the complaint was upheld. Marks should not be altered either by administrators or by the board of governors although aegrotat standing or a course average could be assessed provided proper academic procedures were followed.

Dr. Stubbs responded to the furor by stating that he had no power to overturn the decision of the panel. This was disputed by Dr. Hafer and a number of other faculty. In any event Dr. Stubbs, whose contract was up for renewal, requested medical leave for serious depression which was granted by the Board.

Eight professors brought a motion to the university senate to ask the board of governors to suspend the discipline portions of the harassment policy. After two hours of vigorous debate, the motion was defeated 25-5. Students argued that the passing of such a motion would send a negative message about how the university views students. Several professors said that the existing policy was better than no policy. A second motion calling for a senate review of the proposed new policy was carried unanimously.

The university ultimately agreed to mediation and, if necessary, arbitration of the dispute with Mr. Donnelly. The mediation was conducted by a well-known arbitrator, Stephen Kelleher. Ms. Marsden refused to participate. The parties agreed to confidentiality, but details gradually seeped out. During the proceedings, David Gagan, the acting President, issued a statement questioning the fairness of the original process. Kelleher apparently came to the conclusion that the procedures had been seriously at fault and that there were important inconsistencies in the testimony of Ms. Marsden. As a consequence the Board of Governors reversed the decision to fire Mr. Donnelly, gave him his back pay, and paid his legal bills. It also agreed to expunge the case from his file and admitted that there were flaws in its procedures. Both sides agreed that the settlement could not be said to be a criticism of the harassment panel members.

Dr. Gagan said that "the university regrets what Mr. Donnelly and others have gone through. If we were convinced Mr. Donnelly was guilty of sexual harassment, we would not have reinstated him. We cannot hide the fact that this has done damage to the university's public profile." This was a view echoed by the British Columbia Minister who said it was a black spot on the reputation on the university. "We have to learn from our mistakes, " Dr. Gagan said, "learn from those things that we have been reminded of constantly over the past few weeks that aren't acceptable."

Some SFU faculty called for Dr. Stubbs' resignation as a consequence of the handling of this case. Others disagreed. Professor Marjorie Griffin-Cohen, professor of women's studies and of political science, and chair of women's studies argued that if John Stubbs goes, women and minorities at SFU will lose. Students also launched a petition to keep Dr. Stubbs in office.

Many commentators noted that universities across the country were likely to reconsider their sexual harassment policies as a consequence of this case. Universities need to be clear about the role of the sexual harassment officer -- is the officer an educator and an ombudsperson or is the incumbent a special prosecutor for the president? Can the sexual harassment officer be a witness in a case? What is the role of the administration in investigating charges and imposing discipline? Should the university solicitor advise both the hearing committee and the president or is there a conflict of interest? What recourse has the defendant? Should any procedures that are followed be public? What should be the test for any hearing -- a balance of probabilities or a stronger test -- particularly when a guilty verdict is likely to ruin a person's career?

Professor Kathleen Atkins, chair of the committee reviewing the SFU harassment policy said in the Vancouver Sun that all accusations should be investigated. However, if the harassment policy coordinator and the chair of the policy board agreed that a case was vexatious or malicious, it could be dropped. If there is a hearing, and a panel determines that the accusation was malicious, the president can punish the accuser and compensate the accused. No procedure, she said, can force someone to appear before a panel but the president's decision, based on the panel's recommendation, could be appealed as in the Donnelly case. Sexual harassment procedures, she said, should be confidential to protect both parties but only up to and including any formal hearing. Hearings should be open and chaired by a professional arbitrator. Her committee was considering whether there should be written transcripts and written decisions by the panel but the province's privacy legislation would still govern what could be released.

CAUT considers that sexual harassment policies insofar as they involve academic staff should be negotiated as part of the collective agreement with the faculty association or faculty union. This has two advantages. It increases the legitimacy of the policy because it has been approved by the faculty by vote when the collective agreement is ratified rather than being imposed by the president or the board of governors. It also means that any discipline arising falls under the grievance and arbitration procedure where there are longstanding and well known legal rules of procedure.