This post is one in a series, proceeding in roughly reverse chronological sequence, regarding my experience as a PhD student in Indiana University’s School of Social Work (SSW). Starting from the Introduction, this series indicates that my PhD studies came to an end at the qualifying stage, in 2011, when my qualifying paper was flunked.
The preceding post provides some insight into events preceding that failing grade. As that post illustrates, there was a pattern of harassment going back to 2008. That pattern seems to support the impression that the SSW flunked my paper for purposes of retaliation, regardless of the paper’s actual merit.
The present post is a counterpart of the previous post. This one, too, goes back as far as 2008. It addresses some justice-related questions that might arise as one reads the story of the qualifying paper and of the harassment that preceded it. Some matters discussed in the previous post are thus re-presented in an early section of this manuscript. Following this treatment, the next post in this series resumes the reverse chronology, at the point just before the qualifying paper was graded, circa December 2010.
This post represents one of three separate attempts to obtain justice vis-à-vis IU. An earlier attempt had arisen on the Bloomington campus, when (as in the SSW) IU prevented me from completing my PhD. A later attempt would follow this one, when the nonexistence of student protections on the Indianapolis campus led me to file a complaint with the U.S. Department of Education.
Like an earlier post in this series, this one consists largely of the text of a manuscript that I submitted to an academic journal for publication. Here, as there, I placed my own experience within the context of a larger discussion of related issues. Also, as in that other instance, there is a post, in a separate blog, that discusses how that journal handled this article. Altogether, I wrote three such manuscripts; the third was submitted to a women’s journal of social work. Briefly, as elaborated in those other posts, these social work journals did not seem very eager to receive manuscripts that would be critical of established programs of social work education.
But that is not the topic here. Here, the topic is justice for the student. Inspired by one social work professor’s report that he was using one of my published articles in one of his classes, I decided to write this manuscript in a way that might contribute to relevant class discussion. The principal adjustment that I made for that purpose was to reverse the sexes of players in the drama.
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How the Rule of Law Works:
A Case in Social Work Education
Ray Woodcock, JD, MBA, MSW
Popular references to “the rule of law” mask the disturbing but unavoidable reality that law is essentially unavailable to most people, and especially to disadvantaged people, for most individual disputes in need of remediation. Access to law is especially scarce in the U.S., notwithstanding its reputation as a haven of litigation. Nonlegal approaches to justice (e.g., dialogue and voluntary self-correction at best; corruption and violence at worst) tend to prevail. Quasi-legal alternatives provide limited protections. Empathy toward difficulties of individual justice experienced by clients, broader professional interest in law, and enlightened teaching about law, are encouraged by illustration of the roles of legal, quasi-legal, and nonlegal routes to justice in a case arising in a school of social work.
Introduction to the Rule of Law
Social workers may find it convenient to refer to “the rule of law” as an approach to government that differs from unregulated power wielded by dictators, clerics, or other ruling individuals (e.g., Olson, 2007, p. 50). The rule of law in this sense means that arbitrary power is subordinated to written (and thus potentially less biased and better-defined) legal principles (see Oxford English Dictionary, n.d.).
While the rule of law, thus construed, surely provides some important protections against outrageous abuses of power, it has its limits. For legal practitioners, strictly speaking, the rule of law is a myth, because law is always created and interpreted by people (Hasnas, 1995). The public treats the myth as fact, and views the occasional blatantly corrupt or excessively politicized judicial opinion as an anomaly (White, 2010, pp. 333-334). The public is not necessarily attuned, in other words, to political and/or self-serving realities of judicial reasoning (Geyh, 2010, pp. 20-30). The written rules do serve various purposes; but their existence inevitably fails to prevent judges from numerous and sometimes extreme abuses (e.g., Sarat, 2009; Naughton, 2008; Bedau & Radelet, 1987; Glaberson, 2006).
The notion of the rule of law tends to be based upon assumptions, taught in law school, about the normal workings of the justice system. One was stated by the Supreme Court in Marbury v. Madison (Marshall, 1803, p. 163):
[I]t is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded
or, in the common shorthand, “For every right, there is a remedy.” In the real world, this maxim fails in both a narrow and a broad sense. Narrowly, there are many instances in which people, armed with lawyers, have a legal right but no remedy, because the law prevents them from suing (e.g., Banta, 2008, p. 120). Broadly, the maxim fails because it depends on others that also fail. Some have to do with the nature of justice. Posner (1990, p. 142) expresses the view that
Our government might not function if the people running it took seriously every bromide about democracy and popular sovereignty. . . . [If a particular method] of judicial decision making “works” we should not lose sleep over the fact that it cannot be fitted into a neat table of organization constructed from the Constitution and democratic theory.
In other words, there is not necessarily a straight line between what kids learn in school about law and what actually happens in courthouses.
Another maxim taught in law schools is that legal disputes are to be decided “on their merits” – that is, on the facts. That sounds good, but it means that justice becomes very expensive, as people find themselves obliged to provide evidence supporting their view of what the factual merits are (Tidmarsh, 2010, p. 412). In practice, the evidence-gathering “discovery” phase of litigation tends to account for more than half of the total costs of litigation, and can quickly go into the tens of thousands of dollars (p. 419; e.g., Estreicher, 1999). People cannot afford that, for the most part. Only a small fraction of disagreements among people even get to first base within the legal system.
There is also an assumption that “legal combat,” involving lawyers’ zealous, one-sided advocacy on behalf of their clients, is “the best method for arriving at truth” (Zacharias, 1991, p. 54). That notion fails because successful attorneys commonly consider it part of their job to distort and manipulate the interpretation and presentation of the merits (Thomas, 2007, p. 6; e.g., Spaulding, 2008, pp. 1393-1395) and some are better at it, or enjoy unequal resources or positioning in the particular case. Consider, again, Posner (1990):
Law, unlike science, is concerned not only with getting the right result but also with stability, to which it will frequently sacrifice substantive justice. (p. 51)
The fact that juries, unlike judges, do not give any justification for their decisions is a dead giveaway; a requirement that jurors explain their votes would be a source of profound embarrassment to the legal system. (p. 209)
In practice, the lawyer’s client is often hoodwinked, after spending inordinate amounts of time and money, as s/he learns that the dream of a grand presentation of Truth at trial is almost always replaced, especially for reasons of cost, by pretrial settlements in which the client’s views may not even be presented, much less vindicated (Spaulding, p. 1406; Zacharias, p. 55).
One very good reason why these assumptions and maxims fail in most cases is that they depend upon the services of a lawyer, and lawyers are just too expensive for the vast majority of Americans. In those few areas of legal practice where the law allows for the possibility of huge recoveries, attorneys are often willing to take a case on a contingency fee basis, and to absorb the up-front costs themselves, in exchange for getting a share (typically one-third) of the amount awarded at trial or in settlement. Those cases aside, the client generally has to pay for the attorney’s time, at an average of at least $180 per hour (depending on which kinds of lawyers are included) – beginning with a retainer, typically non-refundable, of $3,000 or more (Martindale-Hubbell, 2010; Hadfield, 2010, p. 146). These and other substantial costs of litigation, the uncertain odds of winning, the risks of being countersued, and the unpredictability of the amounts (if any) that a judge or jury will award if one does win, combine to deter people from pursuing many cases of genuine merit. According to Hadfield (p. 134),
[T]he U.S., despite being one of the most law-based socio-economic systems on the planet, arguably devotes significantly less support than most other countries – both developed and developing – to the legal markets and institutions necessary to make all this law the organizing principle in fact, not just theory, of everyday relationships.
America is reputed to be a litigious place, largely because of those relatively few areas in which contingency fees encourage attorneys to sue. In the larger picture, though, Hadfield (2010) finds that Americans are far less likely to take steps to resolve a legal situation than are people in a number of other countries, including the UK, Japan, the Netherlands, Canada, New Zealand, and even Slovakia (pp. 136-137). A significant part of the difference in some of those countries is that nonlawyers (e.g., paralegals) are allowed to provide legal assistance. While as many as 60% of people in the UK and Slovakia contact a lawyer or some other person or organization for legal assistance when they encounter a need for such assistance, the percentage may be as low as 9% in the U.S. (p. 141). In short,
the vast majority of the legal problems faced by (particularly poor) Americans fall outside of the “rule of law,” with high proportions of people – many more than in the U.K., for example – simply accepting a result determined not by law but by the play of markets, power, organizations, wealth, politics, and other dynamics. (p. 143)
If the rule of law is taken at face value, it barely exists for ordinary people in this country. Not to say that people are not ruled. They always are, under any system of government (Rousseau, 1762/1968, p. 49; Orwell, 1946). And not to say that the substantive (as distinct from procedural) rules are worse here than elsewhere. In some ways, they are; in some ways, they are not. But law – as a means of direct interaction with government, not only to one’s detriment (as when one is sued, prosecuted, or otherwise controlled), but also to one’s advantage (as a way of seeking protection and remedy regarding objectionable conditions in one’s individual circumstances) – law in that sense basically does not exist for most situations in the U.S.
What Americans decidedly lack, then, is a legal arrangement similar to the legendary Japanese auto assembly line, in which any worker who found a defect was expected to shut down the whole process until it was corrected (Nanto, 1982, p. 8). Here, it seems to be assumed that there will always be many and sometimes horrible defects in the output.
People in this legal vacuum are usually left with options that can be categorized, from the client’s perspective, as either quasi-legal or nonlegal (see Charny, 1990, p. 418; Olivas, 2002, pp. 4-5; Bothe, 1980, p. 68). The quasi-legal alternative, as the term is used here, entails a derivative but still relatively formalized and rule-based arrangement in which the rules are generated by someone other than a judicial or elected official, and the processes take place in something other than a traditional court setting. For instance, organizations often develop their own policy manuals or other collections of rules (e.g., Clark, 2011), and those may set up procedures and expectations for handling certain kinds of matters.
In one common example, employers find that they are better protected against lawsuits if they escort a disfavored employee through a sequence of sincere or contrived steps to document his/her undesirability, rather than just firing him/her outright (e.g., Falcone, 2010, p. 33). There may be a process of sorts, with some elements of fairness; but on balance, these kinds of arrangements tend to be constructed to provide significant advantages and protections to the employer. Similarly, organizations and individuals commonly use written contracts and other obligations (e.g., implied; imposed by law) to memorialize mutual understandings and/or to protect themselves – but also, too often, to exploit others, especially those who do not know their rights and/or hesitate to enforce them (e.g., Linzer, 2008, p. 201). As a device whose effect is often quasi-legal, a contract’s primary function (in e.g., apartment rental clauses requiring an unsuccessful tenant litigant to pay the landlord’s attorney fees) may be to intimidate a party by emphasizing how harshly s/he will be punished for even trying to enforce such rights.
Quasi-legal remedies may unfold in alternate dispute resolution forums (e.g., arbitration, mediation). Recourse to such forums may be allowed or required by relevant authorities, such as the governing contract, the court in which a party has filed suit, or the governmental agency whose regulations stipulate how the dispute is to be processed. An aggrieved party might have to present his/her case in a streamlined kind of proceeding, perhaps giving him/her some idea of what a real judge is apt to decide and/or an opportunity to tell his/her story and obtain some sense of justice, before the matter can go on to be litigated in court (e.g., Funk, 2000, pp. 1, 6). Federal agencies in particular – included, here, in the client’s-view category of quasi-legal (i.e., non-court, often do-it-yourself) entities – are variously mandated by Congress to produce regulations and to manage some kinds of disputes arising under those regulations (Stein, 2004, pp. 29-30). While quasi-legal proceedings are intended to be, and typically are, much less expensive than going to trial in a court, they can still require hefty investments of time, money, emotion, and other resources. In addition, those that depend upon voluntary participation, and that lack the power to enforce their decisions, may have little practical effect.
And then there is the nonlegal alternative to legal and quasi-legal approaches. Despite the lofty theory of the rule of law, nonlegal remedies have always accounted for the vast majority of human responses to real or perceived injustice. Verbal and/or nonverbal communication leading to mutually satisfactory dispute resolution is probably the ideal. Where disputants cannot persuade each other, another option is to persuade mutual acquaintances or other third parties to lend the weight of their opinion on the fairness of the matter. Often, though, especially as one moves away from immediately interested individuals, third parties decline to become involved, on the ground that disputes are the province of the legal authorities.
Where such relatively congenial avenues to resolution fail or are unavailable, people frequently resort, deliberately or unavoidably, to less constructive means of nonlegal remediation. They may adopt a passive or submissive stance vis-à-vis their antagonist, with or without resentment, self-delusion, or self-loathing. They may try to deceive one another as to the disgust or fear they feel or the revenge they are plotting. They may use their professional, financial, or personal influence in social, political, or media spheres to intimidate, coerce, or punish the other, while those lacking in such influence may make false or excessive claims of victimization. Parties may engage in relational aggression (e.g., shunning, gossip) or in physical aggression ranging from petty vandalism or sabotage to the most extreme acts of violence (e.g., Leighton, 2010, p. 527; Huq, 2001, p. 359). Many extralegal options are free, in some sense; many are available to almost everyone; many undesirable ones seem to have become more visibly utilized over the years, perhaps in tandem with the apparent diminution of practical access to legal recourse (see Hadfield, 2010, p. 146; Hobbes, 1651/1904, p. 84).
A Case in Social Work Education
The preceding paragraphs have provided some observations about the rule of law as it applies to ordinary people. Those observations have significantly understated the experiential dimension. Non-predatory individuals tend to find conflict situations very unpleasant. Even the foregoing remarks that do mention psychological reactions are a poor substitute for the actual experience. The preceding observations are also very general: they can seem to be of no immediate consequence to most readers, even though some (regarding e.g., the availability of third-party intermediaries) imply potential civic obligations (e.g., speaking up; serving on a jury) or secondary roles (e.g., gossip) on the part of people (e.g., neighbors) who are not themselves directly involved in a particular dispute. In short, life is full of such justice-related factors, though they are often greatly downplayed.
Social workers who have had little firsthand experience with overt legal or quasi-legal dispute processes may appreciate application of the foregoing abstract observations to a real-life situation. The following paragraphs present one such application. The case described in these paragraphs takes place in a setting that will be familiar to most social workers: a school of social work. While the names and certain other elements of the case have been greatly simplified, abbreviated, and otherwise altered in the following presentation, this is a substantially true story. It does not purport to present both sides, much less to decide the ultimate truth of the matter. Doing so would require an attempt at neutral factfinding and documentation. As is common in real-life disputes, not all parties are committed to that sort of thing, since getting to the facts often works against one party and in favor of another. The story is true from the perspective of the person at the center of the tale: it is what that individual experienced and observed; it has been presented in some detail to other related parties; and those other parties have not made a serious attempt to reply. This unilateral perspective of the aggrieved individual is a realistic representation of what it is like to face a situation of perceived injustice in a rule-of-law context.
Creation of a Case
The story begins with Jennifer, a PhD student in a school of social work (SSW) in a state university. The SSW has an online discussion group in which Joe, a fellow PhD student, has posted remarks related to gender. Jennifer, who is an active participant in the online group but has not previously been known for her interest in gender issues, challenges those remarks.
Bill, another PhD student, who does have a longstanding interest in gender issues, strongly dislikes Jennifer’s views. He suspects, however, that he may lose the debate if he presents his own views openly online. Instead, playing up Jennifer’s general reputation as an outspoken individual, he goes to the dean. He claims to be afraid of Jennifer – not physically, but in terms of classroom safety. Now that she has attacked his gender online, he says, he is afraid that she will do so in the classroom as well. On this basis, Bill refuses to attend a class in which he and Jennifer are both enrolled.
Jennifer is therefore summoned to meet with the dean of the SSW. In that meeting, she gets the sense that the dean does not really buy Bill’s claim. The dean says he just wanted her to know that he has received this complaint. Jennifer thanks him, thinks about it, and proceeds to post a message about this in the online group. There was an effort to intimidate her, she says, and that was not necessary; the online discussion group is open to varying viewpoints, and she is also receptive to contacts via email, phone, or if necessary through peers.
This is not the outcome that Bill desired. He tries again. This time, he bypasses the SSW’s dean and goes to the university’s dean of graduate students (DGS). Jennifer does not know whether Bill has some special connection with the DGS, or does a better job of presenting his claim this time, or precisely what happens there. For whatever reason, the DGS takes a strong interest in the matter, in Bill’s favor. The DGS summons Jennifer to meet with him, with a threat that she may be subject to expulsion from the university if she does not appear within three days. Jennifer, alarmed, sends a message to the dean of the SSW. She feels that this matter is getting blown out of all proportion. Surely, she thinks, nobody wants this to become a big deal. To her surprise, though, the dean does not respond. Again, it is not clear to Jennifer what has happened, but now she is concerned that both deans may be taking Bill’s side.
Jennifer meets with the DGS. That meeting lasts three hours, with no one else present. For Jennifer, it is basically an interrogation. The DGS seems to be digging for ways in which Jennifer has made mistakes, apparently based on distortions of stories that the DGS has heard from Bill and from other students and faculty whom the DGS has now interviewed. Jennifer’s fears are confirmed, the following week, when she receives a letter from the DGS informing her that she is being placed on probation for more than 13 months. The letter makes twisted use of things that Jennifer said during that interrogation.
Earlier, in the message summoning Jennifer to a meeting, the DGS had already ordered her to have no contact with Bill at any time, outside of the classroom. At about that same time, the DGS also shut down the online discussion group. The DGS openly states that the reason for doing so was to single out Jennifer – to prevent her from posting any further messages. Things went to a more extreme level, the week after the meeting with the dean of the SSW, when Bill persuaded the DGS to post campus police officers outside the class that he and Jennifer attended, so that he could feel safe there. That was completely baffling, since the dean of the SSW had already said that this was about online discussion, not anything physical. Now, in this letter putting Jennifer on probation, the DGS takes another step: he orders Jennifer to have no contact with any PhD students in her program – including her own friends – except in class.
By this point, Jennifer is wondering if she is still in America. It turns out that Bill’s complaint was provided on a form that the university created to protect the campus from terrorism. She also learns, however, that the team of specialists that the university has assembled to review such forms has concluded that she does not pose a threat. So why, she wonders, were the police called? She seeks help from the university’s Student Advocate. The Student Advocate, himself a member of that team of specialists, is not familiar with Jennifer’s case, which only deepens the mystery: now it seems that his team was not involved in the matter after all. The Student Advocate promises Jennifer that her communications with him are confidential, but then he forward her emails to the DGS.
In this introductory period, there has been an essential development related to the rule of law as a tool on behalf of individual rights. Specifically, lawsuits could now be filed. Jennifer does not know whether Bill is aware that his actions could have those sorts of complications. Because of the no-contact order from the DGS, she cannot even try to talk to him. Of course, the success of such suits, and the amounts of damages awarded, would be unknown until they were concluded, and that might take years. In other words, a need has arisen for the rule of law, but so has the concern about law’s unaffordability and unresponsiveness.
The Rule of People
In the absence of effective legal remedies, Bill’s nonlegal access to the DGS has trumped the quasi-legal rules, stated in the university’s student code, that would have protected Jennifer if they had been enforced. The availability of the nonlegal route has actually converted the quasi-legal rules into the opposite of their presumed intent. Instead of providing protection against arbitrary decisions by someone like the DGS, the rules in the student code become weapons for such people: ignored when they are inconvenient, but cited as firm and important in order to facilitate a preconceived, oppressive outcome.
The oppression at issue is not some abstract philosophical principle. Among other things, the DGS, singling out Jennifer to be silenced, has almost certainly violated her constitutional rights to free speech and free association (e.g., Chemerinsky, 2009, p. 770). The classic concern about a “chilling effect” upon free speech (e.g., Farber, 1991, p. 570) is borne out when the online discussion group is allowed to operate again. Several months after the group starts back up, Jennifer compares how postings have changed. She, herself, has not dared to participate at all. Other students have also obviously been intimidated. The numbers of posts overall and per person are dramatically reduced, as are the numbers of participants. There have been no further discussions of social work issues. Free speech is an important tool for change-seekers in any case, but in this context its denial has additional repercussions: these are PhD students – that is, teachers of the next generation of social workers – who are being taught that they may be punished for disagreeing with someone (see Wade, 2009; Greenberg & Edwards, 2009). Bill, himself, was not much of a participant in the online group either before or after these events. By portraying himself as a victim of cyberbullying, he has effectively bullied others into silence. [Another post discusses this and other workplace bullying tactics.]
Matters now proceed to a next step. Without meaningful protection from either legal or quasi-legal rules, Jennifer becomes a target. In what appears to be a further attempt to intimidate and/or to document her real or imagined failings, some of her professors begin visibly sending the chair of her PhD program copies of every email they send to Jennifer. She asks why they are doing this, but they do not explain. Faculty members who were previously favorably inclined toward her – including one whom she has known for years – are now unwilling to be her advisor, to serve on her doctoral committee, or even to write letters of recommendation for her. Unlike Bill and other PhD students, Jennifer eventually discovers that she will not be receiving any further funding and will be given no opportunities to gain teaching experience.
As word of her punishment spreads, Jennifer becomes increasingly ostracized, which in turn is apt to facilitate further exclusion (e.g., Gerber & Wheeler, 2009; Vescio, Gervais, Heiphetz, & Bloodhart, 2009; Baumeister, DeWall, Ciarocco, & Twenge, 2005, p. 590). Classmates do not merely avoid her, for fear of getting into trouble; some are now openly attacking her. Bill tells others that Jennifer might be suicidal because, at one point, she sent some acquaintances a link to a well-known documentary about suicide (see Steel & Friend, 2006). Two students who were friendly toward her begin making negative remarks to other students about her mental health. Another who becomes her close confidante, over a period of several months, turns out to be disclosing her confidential information to Bill and others.
These developments appear to be the tip of an iceberg of words and deeds that Jennifer is not hearing about (see Chernyak & Zayas, 2010). Given the general sense of a hostile environment and the specific orders not to have contact with Bill and not to talk to any PhD students, Jennifer feels unsafe in the SSW, and almost entirely ceases to be there except to attend classes.
Jennifer feels that she has been treated unfairly. She writes a long letter about it to the director of her PhD program in the SSW. The director does not seem interested. It is not clear that she even bothers to read the letter. Jennifer also files a complaint of harassment against Bill. She is told the she must file this complaint with the DGS. The DGS ignores it.
Turning to Others
At some point, Jennifer begins to look around for outsiders who may be able to help her with one or more aspects of this situation. On the legal level, she notices that most of the lawyers in this region seem to be graduates of the university in which the SSW is housed. Her inquiries generate few responses. One attorney from elsewhere agrees that she has been “railroaded,” but is not interested in taking the case. Another is interested, but his retainer is $7,500, and he will be charging against that retainer at $250 per hour. Yet another, willing to take the case on retainer, is cautious; he says that judges are hesitant to tell schools how to run their internal affairs. The local American Civil Liberties Union attorney agrees that her constitutional rights have been violated, but he won’t take the case either. She knows, anyway, that courts tend to have huge backlogs; a legal case can take a year or more even to get started. Besides, what university will hire her, if she becomes known as the one who sued an SSW?
Jennifer’s helpful options on the nonlegal level are equally limited. Concerned about the potential for gossip by social work professors with their buddies at other schools, and especially about the potential damage to her career, she hesitates to discuss the matter with social workers. As one classmate says, people who hear the story may just pick up the phone and call someone at the SSW to check this out – and who can say what they will be told, or whom they will believe? The dean of the SSW is pretty well known; the idea that he would be involved in any kind of abusive behavior may be hard for people to accept (e.g., Wallace, 2007, p. 33).
Jennifer realizes that she could try calling a reporter, but she already knows that newspaper budgets permit very little investigative reporting these days (Houston, 2010). The local newspaper seems to engage in almost none, and it is not clear what difference a newspaper article would make anyway. It could actually backfire, if it portrays her as a troublemaker.
On a more responsible level of journalism, she actually does write up an article for publication in a social work journal. The article discusses the experience of a student who explores various legal, quasi-legal, and nonlegal means of obtaining fair treatment within a social work PhD program. For a while, she hesitates to submit it anywhere, fearing that any journal editor to whom she sends it will promptly call the SSW to gossip about it. Eventually, she decides that she is being silly, and sends it to a prominent social work journal in England – far enough away, she thinks, that gossip is not a serious concern. The journal sends her a notice that her article will be sent out for review in a few days. So this is pretty exciting: finally, someone in social work is taking an interest. Seven weeks later, she gets a note back from the editor. He says he’s sorry but they’ve decided not to send it out for review because the journal does not publish pieces on this topic. She wonders why it took seven weeks for them to reach such a decision, and why the editor would not let reviewers decide on the article’s relevance. She writes back, points out that the journal advertises itself as publishing articles on all aspects of social work, and has in fact published articles on this topic in the past. She asks the editor if he has contacted her SSW about it. He does not reply.
By this point, Jennifer is increasingly pessimistic about the state of professional behavior within social work. Such pessimism, reasonable in itself, could reflect the cumulative discouragement and narrowing of perspective that people often experience in such situations (e.g., Fox & Boulton, 2006; Bills & Gerber, 2005). Everyone seems to see her dispute with the SSW as her private problem – a problem that others are not having. What is wrong with her, that she cannot fit in? A common view seems to be that she should just accept corruption in the educational process, get her degree, and focus on her own future. Being a graduate student often involves abuse and exploitation (e.g., Langlais, 2006; Westhues, n.d.; Wong, 2006). Even in social work? “Troubling but true,” a social work professor at another university tells her. And even, it appears, in the most prestigious social work programs (e.g., “Columbia Prof,” 2008).
The idea that this should be accepted as normal does not sit well with Jennifer. She feels there are significant ethical issues here, and that it is quite appropriate for her to expect her PhD program to address them. She derives encouragement from whispered, supportive remarks and bits of information that a few students have been providing to her since her punishment began, and also from the memory of supportive comments that people were making in the online group before the DGS shut it down. To her, Barsky (2010) is on target: “Perhaps it is time for social workers to start reframing whistle blowers as moral leaders, socially conscious heroes, and courageous advocates for what is right.” Self-flattering, to be sure, but apparently this sort of statement is where whistleblowers derive encouragement, when their worlds seem to turn against them.
For Jennifer at this point, neither the legal nor the nonlegal options seem promising. And yet, having become somewhat educated about the third, quasi-legal option, in her encounters with the DGS inside the university, Jennifer is now skeptical about that route as well. The corrupt but fundamental truth seems to be that connections count for everything in this profession, and the SSW and the university are undeniably better connected than she is.
One quasi-legal entity that could theoretically have an impact on the situation is the National Association of Social Workers (NASW). The NASW (2005a) has its own National Ethics Committee, whose statement of purpose indicates that it “hears complaints . . . against members who are alleged to have violated the [NASW’s] Code of Ethics.” Unfortunately, the NASW arrangements appear to be in a stage of transition and/or disarray. Seemingly relevant materials are found on two different websites (powerofsocialwork.org and naswdc.org). There is an NASW Office of Ethics and Professional Review (NASW, n.d.) that says it works with the National Ethics Committee, but Jennifer is not sure whether that means there are two separate processes. The NASW seems to be considering whether it “should simply get out of the business of processing complaints” (ASWB, 2009, p. 8).
In any event, it is not promising that the NASW would ask whether someone violated its Code of Ethics. That Code is quite general and, Jennifer thinks, could probably be interpreted in different ways to fit the occasion – against her as well as for her. The motive behind the NASW procedure seems to be primarily to protect social workers from liability (Woodcock, 2008) – and there, again, the nonlegal connections would surely not run in her favor. People at the local NASW chapter, which apparently decides such matters, would seemingly be biased in favor of their buddies at her SSW. Even if she were to win somehow, there does not seem to be any provision for recommending changes in the way things are done in an SSW. Apparently only 3% of the NASW’s cases are sent to formal adjudication (see ASWB, p. 9; Reamer, 2009, p. 122). Worse, Jennifer will be required to keep silent about the process and the outcome (ASWB, p. 10), which means that the NASW could decide to do nothing, and yet that would still be the end of her options.
These may be some of the reasons why most complaints against social workers come to the NASW, not directly from complainants, but rather through state licensing boards (ASWB, 2009, p. 9). The process seems to be, in other words, that the aggrieved consumer complains to the state, and some states inform the NASW of the outcome, so that the NASW can decide if it wants to revoke the social worker’s membership. But it does not sound like the NASW usually takes further action in such instances (pp. 9-10).
Following that lead, Jennifer looks up the licensing board in her state (ASWB, 2008). It contemplates consumer complaints only against licensed professionals, which makes sense, but to her knowledge none of the relevant faculty or administrators in the SSW are licensed in this state. Consumer complaints are handled, in any event, by the state attorney general’s office, which seemingly means there would have to be a criminal violation. Jennifer considers that not only unlikely but also a bit scary. Nonetheless, after one particularly upsetting encounter in the SSW, she does work up the nerve to send the attorney general a copy of the letter of complaint that she sent to the chair of her PhD program. As she expected, the attorney general replies that this case is not suitable for their office. She later sends a complaint to the county prosecutor, and follows it with a phone call when she receives no response; but nothing comes of that either.
As time goes by and the ostracism continues, Jennifer considers looking into whether the state’s department of education, or some other agency, would have an interest in the situation. But then she reflects that, if this were a meaningful option, it would already be clear to the university, and the steps taken by the DGS and the SSW would have been adjusted accordingly. An acquaintance who works in the state government agrees with that assessment. She considers calling her state congressional representative, but she lives in the same district as the university, and she figures that the university is probably an influential constituent. She is reinforced in that line of thought by what she learns about the accrediting agencies that supposedly keep watch on the quality of American higher education. Here, again, she does send a detailed complaint to the regional accreditation agency; but she receives only a one-page letter telling her that the agency does not deal with individual cases. This incident inclines her toward the view that the regional agencies are ineffectual if not counterproductive (e.g., American Council of Trustees and Alumni, 2007; see Eaton, 2003).
It seems, anyway, that the Council for Social Work Education (CSWE) would be the more specifically relevant accreditor – except for the fact that the CSWE does not accredit PhD programs (CSWE, 2011a). Besides, the CSWE emphasizes that its Commission on Accreditation “is not authorized to adjudicate, arbitrate, or mediate individual faculty or student grievances against a program” (CSWE, 2011b). That is, Jennifer would have to show “a possible violation of one or more accreditation standards or educational policies,” apparently applying to students across the board. That could be difficult, in a case where one student is being singled out. The SSW could just say that Jennifer was the problem, and it appears that the CSWE would be inclined to believe the SSW. Her concerns in that regard seem consistent with arguments that the CSWE does a poor job of overseeing quality in social work education due to, among other things, a conflict of interest in its relationships with member schools (see Stoesz & Karger, 2009a; Sowers & Dulmus, 2009).
Ultimately, Jennifer decides to try filing a complaint with the U.S. Department of Education (ED). She starts with ED’s Office of Program Compliance (2009); but they decide, apparently from the wording of her letter, that she is actually complaining about an issue of discrimination, and they refer her to ED’s Office for Civil Rights (OCR). She goes ahead with that approach. Under the circumstances of her case, OCR’s process begins with mediation. People attending include Jennifer, the federal mediator, the dean of the SSW, the chair of her PhD program, and the university’s lawyer. The lawyer is almost the only one who does any talking for the university, and he takes a sharply adversarial stance. He tries to confuse Jennifer and basically contributes nothing productive toward an outcome. In other words, it is not really a mediation at all.
OCR’s mediator concludes that mediation has been unsuccessful. The next step is that, months later, some people from OCR make a conference call to the SSW. They ask easy questions; they don’t probe much; and in the end, six months after she filed her complaint, they produce what Jennifer considers a grossly biased decision against her. She files an appeal with ED’s national office, but that appeal sits without a decision for more than two years. Even the office of her senator in Washington, DC is unable to persuade ED to decide the case.
That is the end of the story, and that is how it works, very commonly, under the rule of law in America. Even though few people explore as many avenues of recourse as Jennifer has done, in the end she is still out of options, both within the SSW and elsewhere. Administrators and faculty in the SSW have taken a stance against her; they have not been and apparently will not be held accountable; and that is pretty much her tough luck. The public and the profession have been disserved, insofar as there is a need for social work professors, there has been a substantial investment in training Jennifer for that line of work, and there is no clear reason why she should not be encouraged on toward graduation and a career of that nature.
Conclusion and Implications
The case examined in this article arises in the context of social work education. As such, some aspects of the case are not specifically relevant to other kinds of cases in which people come into contact with legal issues. Even so, Jennifer’s experiences and views do provide a glimpse of what disadvantaged individuals – even those with above-average intelligence and determination – may experience when they run up against entrenched individuals and organizations. This opportunity to see how it works in a personally meaningful context, such as a school of social work, may enhance social work students’ empathy toward clients who have similarly frustrating and destructive encounters with the law and its alternatives.
The fact that anything like this could unfold within a school of social work certainly seems disturbing, though again a final judgment on that score would require a careful and extensive presentation and evaluation of views and experiences (or, as a lawyer might put it, arguments and evidence) on both sides. Final judgment need not be rendered in this particular case, however, to justify a call for evaluation of procedures, attitudes, and other relevant factors within schools of social work. The gold standard, consistent with ethical principles, would seem to require protections against the bare possibility of a travesty in social work training.
As the specifics of this case suggest, a form of abuse or injustice may persist because legal and quasi-legal remedies are functionally nonexistent, unsupported, or ineffective against the social and political connections and other nonlegal means available to the more entrenched – often, the more abusive – party. And yet the social work profession is not a strong defender of justice among individuals. That work is left largely to the legal profession, with dreadful results.
Where the lawyers are unwilling or unable to step in individually or to modify their profession collectively to meet the need, it seems advisable for social workers to attend more carefully to the existing structures and processes of dispute resolution on the level of the individual. Such structures and processes have considerable potential to serve the interests of clients, the public, and social workers themselves. Within the process described above, for instance, relatively simple modifications at any of several different stages could have made a substantial improvement. Social workers should not assume that the rule of law functions adequately without their intervention. Rather, those who seek to alleviate the many forms of pain and misery that stem from nonlegal remedies are advised to participate in making legal and quasi-legal avenues of recourse more realistic and practically available.
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Regarding the strong tendency of judges to let universities control academic speech — in Indiana and neighboring states especially — see Ciciora (2016).