December 18, 1997
LEGAL COMMITTEE'S CONCLUSIONS ARE SUSPECT
By Timothy Krantz, Esq.
I have recently reviewed the Report (hereafter "the Report") of the Legal Committee of the Archdiocesan Council (hereafter "the Committee) regarding the disciplinary process at Holy Cross School of Theology ("HC") concerning the alleged incident of sexual harassment (hereafter "the incident"). As a former student of HC for the last two years (and at the time the incident took place), and as a lawyer (having practiced for ten years prior to attending HC), I am very disturbed with the findings of the Committee because I believe they have: (1) grossly misstated facts, (2) failed to identify certain problems which existed in the disciplinary process, (3) failed to name the professors who acted improperly in the process, and (4)unfairly condemned Fr. George Dragas claiming that he delayed his decision (although they did conclude that his reversal of the Committee's decision was "a reasonable one" which could be supported by the facts of the case).
While I was attending HC, several students and the accused priest involved in the incident consulted me for legal advice concerning the disciplinary procedures and penalties that HC was trying to impose upon them. (Additionally, during my two years at HC, I was consulted numerous times for legal advice by students and faculty members). Thus, in addition to having a very good understanding of the life and internal workings of the Administration of HC, I have first hand knowledge of the factual circumstances involved in the incident. Below, I set forth the areas where the Committee's findings and conclusions are suspect, if not completely unsupported by a reasonable interpretation of the facts.
BASIS OF THE COMMITTEE'S REVIEW
WAS NOT COMPLETE AND THUS
The initial flaw of the Committee's review is that they limited themselves to the written documentation produced by the Disciplinary Committee and interviews of the same people. In its Report, the Committee states that its review and findings are based upon the records kept by the Disciplinary Committee (pg. 1). No official transcripts were kept, but rather only one person's summary of the testimony (that of the recording secretary of the Disciplinary Committee). Thus, problems existed with the recording of the testimony given by certain students and priests to the Disciplinary Committee, in that the recorded testimony, according to several students and priests, was not accurate, but rather stilted in its support of the views of the Disciplinary Committee (that Fr. K was guilty of the allegations against him). Since the Committee decided, incorrectly I believe, to use only these records to review (the personal interviews with the same professors who made/contributed to the reports would not make any difference), the entire review and findings/conclusions of the Committee are deficient.
One big problem here is that the Committee failed to interview any of the students who were present at the party and rather decided to accept only the statements that the Disciplinary Committee said they made. One has to be a student at HC to know the animosity that exists between certain students and the professors who were conducting the Disciplinary Committee to understand why they (the students and priests) were not more forthcoming with the Disciplinary Committee. They were, in general, skeptical of all things that these professors were doing at HC (and in my opinion they were justified in this skepticism). Secondly, they knew the circumstances surrounding the Incident: that these professors were mad at the celibate priests from Greece, who had written a letter to the Archbishop complaining about the attitude and unorthodox teaching of these professors, and that these professors were waiting to punish these priests (i.e. embarrass them, or have them removed from HC) if such an occasion arose. Thus, these students and priest were not about to speak to the Disciplinary Committee openly when they knew that anything they might say would be either doubted or deliberately altered. Indeed, several students and priests where threatened by these professors on the Disciplinary Committee saying, that if they did not tell the Disciplinary Committee what they wanted to hear (i.e. that Fr. K had made a sexual advance against another student), they would be expelled from School.
Thus, relying only on the limited (and stilted) notes of the Disciplinary Committee, the findings/conclusions and recommendations of the Committee are at best deficient and at worse, without merit and support.
CONCLUSIONS OF THE COMMITTEE
Below, in the bold headings, I have set out the findings and conclusions of the Committee. Following this, I explain why such findings/conclusions are deficient or completely unsupported by the evidence.
1. The Disciplinary Committee was properly constituted. The conclusion by the Committee that the Disciplinary Committee was properly constituted (i.e. composed of the correct number and faculty members from HC), is completely false and against the clear, stated language of the Student Handbook ("Handbook"), which in general sets forth the proper procedure in these matters and specifically states what the composition of the Disciplinary Committee is to be. The facts are as follows: the Handbook clearly states what the composition of the Disciplinary Committee must be. In this case, the then President, Fr. Calivas, who assembled the Disciplinary Committee (and was in charge of doing so according to the Handbook), did not follow the Handbook requirements regarding the proper composition of the Disciplinary Committee. So what does the Committee conclude? That the composition was correct! They base their decision not on the controlling Handbook, but rather on the testimony of Fr. Calivas, and the others involved, who said that this requirement was not always followed in previous administrations and that it need not be followed in the current situation. How the Committee of four attorneys could buy into this specious argument is beyond me and is a severe indictment of their objectiveness as an "independent legal review committee" regarding their entire review of this case. In fact, it sets the entire tone of their review of this case, which appears to be making the means (facts and applicable guidelines) fit their (predetermined) end (i.e. absolving those at HC who were guilty of misconduct in this situation and trying to lay blame on Fr. Dragas).
You can only appreciate and fully understand what I am talking about in this situation, if you have been a student at HC, or have been involved with the Administration there. During my time at HC, whenever the Administration wanted to avoid doing things according to the written guidelines of HC (i.e. the Student Handbook or otherwise), they would say that "this is the unwritten policy of the School" and the way things have been done here in the past. Translated, that means that they do what they want to do when they want to do it. For example, in my first year at HC, I was told that I could not enroll in a class that had more than eight students in it "because there was an unwritten policy of HC, which stated so". So I did not enroll for that class. I later learned that there is an unwritten policy of HC that a professor must have at least five students enrolled in his/her class in order for the class to be recognized. The same semester that I was excluded from my class, another professor was allowed to teach a class with less than five students. This clearly shows that when the Administration wants things done their way they say, "well this is the way it has been done in the past" despite any written rules to the contrary.
The problem here (and with the previous Administrations in general at HC) is that this is how they operate the School. You can not have a normal, healthy functioning system (school or otherwise) which does not adhere to its written policies, but rather relies on the way things were done in the past (where either no rules existed or they followed procedures in direct contradiction to the written policies and procedures of HC) By buying into this argument, the Committee opened itself up to follow what they were told by the very people who were abusing the entire disciplinary procedure. These individuals (Frs. Calivas, Stylianopoulos, Clapsis etc.) are, of course, going to (and did) say what needed to be said to clear themselves by saying, in essence, that "we know what the Handbook says but this is the way it has been done here." How the Committee could buy into this argument is beyond me and in effect renders their entire decision void, because they are now going on hearsay and unwritten rules/policies/procedures as alleged by those individuals who were trying to manipulate the entire process. Not only did the Committee err in this regard, but its error, in essence, validates this type of conduct at HC and allows it to continue amongst those professors who think that they can still operate that way.
2. The Disciplinary Committee acted reasonably. There are at least three major areas where
I disagree with the Committee's finding that the Disciplinary Committee acted reasonably.
The first area is that the Committee failed to acknowledge that the Disciplinary Committee did not correctly report what was told to them by students and priests who were present at the party. Several students complained that what they told the Disciplinary Committee was either not correctly recorded or was not recorded at all. Further, there was pressure put on these students by some members of the Disciplinary Committee and the Administration to "turn in" their fellow students and that their failure to do so would result in their expulsion from School. The Committee's failure to talk to these students at the party to confirm (or deny) this, is a fatal flaw in their approach as well as their findings in the report.
Secondly, the head of Disciplinary Committee, Fr. Clapsis (who I had as a professor and was very friendly with), as well as some of its members, such as Frs. Stylianopoulos and Papademetriou, were clearly predisposed to retaliating against all the Greek students and priests involved in the incident because of the letter sent to the Archbishop by the Greek priests (who were — students as well at HC) which criticized these very professors for their lack of Orthodox conviction and teachings. To honestly believe that the Disciplinary Committee was not motivated by this event is to deny reality. I was at HC for the last two years and the tension between these two groups was great. The Greek priests were not treated with respect by the faculty and were not invited to serve at the Chapel.
Finally, Fr. Clapsis threatened Fr. Dragas not to disagree with the Disciplinary Committee's findings and refused to cooperate with Fr. Dragas when the latter requested that he (Fr. Clapsis) be present when Fr. Dragas conducted his independent review of the incident (so that the later would not be accused of manipulating the appeal review process). This Fr. Clapsis refused to do. Given this and the open hostility these faculty members had against the students (as well as certain other professors including Fr. Dragas), it is impossible to conclude that the Disciplinary Committee acted reasonably.
3. The Student Handbook is ambiguous and unclear. This conclusion of the Committee is one that is clearly unfounded and again reveals the apparent bias of the Committee and/or their lack of following the required guidelines of the Handbook which apply in this situation. When I was approached by the students for legal advice and had to interpret the Handbook for them, I found no ambiguities in the entire required disciplinary procedures set forth therein. The Handbook clearly states which members are to comprise the Disciplinary Committee, how disciplinary matters are to be handled and how the appeal process is to be handled. For the Committee to conclude that the Handbook is ambiguous and unclear is ludicrous. The Handbook is clear: only matters which involve repeated student violations are to be referred to the Dean of Students and then, and only then, may the President refer the matter to the Disciplinary Committee. The Handbook does provide for another option, if the President desires to pursue it: to deal directly with any serious infraction of the rules regarding Seminarians. However, in this case, the President chose not to pursue this option, but rather to go through the Disciplinary Committee process. The importance of this choice by the President requires the correct interpretation and application of the appeal process as set forth in the Handbook. By going the route of the Disciplinary Committee, the President excluded himself from hearing the first appeal in the matter (which is the Dean's right according to the Handbook), and yet he claimed that the Disciplinary Committee's decision should be appealed to him. The Handbook clearly states how the decision of the Disciplinary Committee can be appealed, and that this right of appeal is clearly for the aggrieved student and not for HC (i.e. the President)! Although the Committee notes in its Report that its members were split on this issue, their failure to come to a unanimous decision resulted in their approving the blatant disregard of the Handbook and the students' rights of appeal by the professors of the Disciplinary Committee.
And what was the Committee's basis for concluding that the right of appeal belonged not solely to the student but also to the President? The basis was merely the statements from the parties which were attempting to abuse the system (Frs. Calivas, Stylianopoulos, etc.), namely, that this is the way things were done at HC in the years past! Again, you have a clear deviation from the written rules of HC (Handbook) and acceptance of subjective interpretation of unwritten rules/policies by these professors. You do not have to be an educated person to know that such a system does not work. You either follow the written rules or you run the risk of chaos. To say that this is the way things were done in the past (regardless of whether they were correct or not), and to believe that such behavior should prevail in situations where the written rules are clear, is absurd. What is even more absurd is the fact that the Committee failed to recognize unanimously this abusive behavior and to correct it.
I reiterate, that, if the Committee is going to follow the words of the professors (who are guilty of attempting to manipulate the entire process) and ignore the clear language of the Handbook, then the result (i.e. the Committee's decision) will amount to a mere farce. This is because it introduces two conflicting arguments - one which is set forth in writing in the Handbook, and the other which is purely subjective and contradicts the plain language of the Handbook. Both sides can not be right. Yet, this is exactly what the Committee did: they said that in this situation neither side was wrong. This is why the Committee's conclusions sound like double talk - i.e. "this interpretation is reasonable, but so is the other side's". In essence, the Committee delivered no decision, and, in so doing, they clearly disregarded their professional and ethical obligations as lawyers in resolving this matter.
4. Fr. Dragas delayed the rendering of his decision. Despite all their indecision regarding the interpretation of the Handbook and the handling of this case, the only thing that the Committee was absolutely sure about was that Fr. George Dragas misused and delayed the process of rendering his decision of the students' appeals by waiting until after graduation and that his actions were "deliberate, improper and disruptive of the process." In fact, it is very strange that the Committee chose to single out Fr. Dragas when so many others had committed abuses which were never mentioned by the Committee. Nonetheless, as to the findings against Fr. Dragas, nothing could be further from the truth.
Only students at HC, or those intimately connected with the events of this incident, could really understand what was going on regarding this incident and all the events surrounding it (this is something the Committee members may never know, unless they talked to the students at HC). The bottom line is that Fr. Calivas and various other members of the faculty (i.e. Frs. Stylianopoulos, Clapsis, etc.) were trying to "retaliate" against certain Greek students and/or priests. When this incident occurred, they thought they had the perfect opportunity to "get back" at these individuals. So they tried to expel from HC all those Greek students and priests who were at the party and who failed to give them statements which supported the finding that Fr. K was guilty of sexual assault. They then tried to stop Fr. K from graduating from HC and attending graduation ceremonies in May. In essence, they were trying to rush the entire disciplinary process to meet their desired outcome for this incident. For instance, in the notice of expulsion received by Fr. K, the Dean of Students, Fr. Gerasimos, told the priest that he had only 48 hours after receipt of the letter to appeal the Disciplinary Committee's decision to expel him from HC. This letter was cc'd to the President and all parties concerned in the disciplinary process. Yet, the Handbook does not specify a time period in which the student must appeal. This clearly shows that while these professors knew better, they continued to manipulate the guidelines of the Handbook against the students and priests, by rushing the proceedings and denying the students their rights under the Handbook. This is one example of a major abuse of the disciplinary process that the Committee deliberately ignored. Yet as lawyers they should have known that this constituted a serious violation of this accused person's rights.
It was Fr. Dragas who refused to cooperate in this illegal behavior of the professors. Rather, he set out to do a thorough review of the entire incident and one that would stand up (should it contradict the findings of the Disciplinary Committee) to later review by outside third parties and those who were trying to "convict" the Greek priests (Fr. Calivas and the others). As mentioned earlier, when Fr. Dragas asked various individuals of the Disciplinary Committee for assistance in his review of the matter, they declined. Does this not tell us something about Fr. Dragas' search for the truth? If he had something to hide he would not have extended such an offer. Does this not also tell us something about the "reasonableness" of the Disciplinary Committee in general and specifically about its President, Fr. Clapsis? Why would he refuse to cooperate with Fr. Dragas if the truth was their common goal? Did Fr. Calivas tell him not to cooperate with Fr. Dragas to make Fr. Dragas' work more difficult? Did Fr. Clapsis know that the truth would be exposed by Fr. Dragas and that he did not want to deal with that in front of Fr. Dragas? Or is it because these individuals wanted to make Fr. Dragas' job harder and over burden this one man with reviewing all the information, witnesses and applicable guidelines in this case? Keep in mind that the Disciplinary Committee had six members who reviewed this case. Fr. Dragas was one man who had to do the equal amount of work that an entire committee did, in addition to talking to students or other people who the Disciplinary Committee may have not interviewed.
Speaking from my personal observations during my two years at HC, I can easily say that Fr. Dragas is one of, if not the, hardest working professor at HC. His busy schedule plus the amount of work he had to do in this case to properly review it warranted the three week time period for him to render his decision. Again, only one familiar with the situation at HC would also knοw that these very professors were, in addition to the above, impeding the process of Fr. Dragas' work (in all areas of his office) so that it could not be performed in a timely manner (such as not providing him with a full time secretary devoted only to the Dean's Office). The Committee may not have known this, or they may have known and cared nothing about it. However, the Committee's finding against Fr. Dragas appears to be nothing more than a character assassination. Why? Because their own findings do not agree with their conclusion against Fr. Dragas.
The Committee correctly states that the Handbook does not contain any guidelines regarding the timing of resolving these disciplinary matters. In such case, the legal system will typically apply a "reasonable" standard of review (i.e. were Fr. Dragas' actions reasonable under the circumstances). For the Committee to substitute its judgement of reasonable in this case when it really does not know what the day to day situation is at HC and refused to acknowledge the "rush to judgment" by the Fr. Calivas and the Disciplinary Committee, is absurd! This is all the more so, when one takes seriously into account the fact that Fr. Dragas had to be away during this period to attend to international and national church dialogues as the Ecumenical Officer of the Archdiocese.
Secondly, the Committee concluded that Fr. Dragas' findings on appeal (that no sexual assault occurred) was one that could be "reasonably" reached by the evidence gathered by the Disciplinary Committee. They further concluded that the Handbook states that only repeated violations by students are to be referred to the Disciplinary Committee (thus first time offenses are to be treated under the informal disciplinary procedure). Since no repeated violation was involved here, Fr. Dragas' approach was correct. Given the above, would it have mattered if Fr. Dragas resolved the matter in less than three weeks? Absolutely not! Fr. Calivas and the others made it clear that they were going to continue to pursue the matter until they succeeded in expelling Fr. K. This is proven by the fact that Fr. Calivas had announced that he was calling a Presidential Caucus which, as mentioned earlier, is an appeal right only of the accused student. Thus, any accusation against Fr. Dragas by the Committee is clearly unwarranted and unsupported by the Committee's own findings.
THE PURPOSE OF THE CHURCH AND HC
One final note on this matter which I believe exposes the true intent of Fr. Calivas and certain other members of the Disciplinary Committee concerns the aim of the disciplinary procedures of the Handbook and the Orthodox Church. The aim of the Church is to heal man from his fallen nature and guide him to salvation. If, as in this case, a student (or priest) is accused of sexually assaulting another person, what should be the response by our Church and its priests? Do we condemn the person immediately and expel him as unfit for the Church and its institutions? Or do we try to identify his/her problems and work with the individual to correct and heal his/her abnormal behavior? For was it not Christ himself who said He came not "to call the righteous but sinners to repentance?" (Luke 5:32). Christ further instructed his disciples that one who sins is to be approached and told of his sin and that if he fails to heed this warning then several church members are to approach him and admonish him. Should he fail to heed their warnings, then they are to approach the Church which is to admonish the offender. Only when he fails to listen to the Church is he to be cut off (Matt. 18:15-17). And finally, in dealing with such matters, we are to remember that our Lord does not desire that "any should perish but that all should come to repentance" (2 Peter 3:9).
Needless to say, the guidelines in the Handbook of HC (as well as all our Church institutions) should follow our Lord's teachings as interpreted by our Church. Given the above, how can these professors (Fr. Calivas, etc.) say that the accused priest (or any student member of HC) should be expelled from HC after an alleged first offense? What benefit does HC gain from such irrational behavior and what does it do for HC's duty of guiding and educating its students along their road of salvation? If this priest had such a problem, what does our Lord tell us to do? The answer is simple. We try to correct the problem and heal the individual. Thus, stripped from all the rhetoric that surrounded the incident, the actions of these professors/priests (Fr. Calivas, etc) during this disciplinary process can be seen for what it truly is - an attempt by those individuals to further their own worldly/personal goals at the expense of the soul of a member of our Church. If they were truly concerned about Fr. K's salvation they would have tried to help him and not attempted to expel him. I fully agree that should any HC member (student or priest) repeatedly violate the Handbook guidelines they should be removed from HC. But that is not the case regarding the incident which is at hand. Fr. K was never given a second chance by his enemies (Fr. Calivas and the others). The teachings of our Lord, our Church and yes, even the student's rights as set forth in the Handbook, tell us that the student is entitled to at least a second chance. The sad part about this entire matter is that these priests, as priests with spiritual children and as fathers with children know better, yet they failed to extend the same love, kindness and pastoral care upon those involved in the incident as they are required to as part of their priestly duties.
My conclusions here are in no way intended as a criticism of the Archbishop for he trusts that those to whom he assigns such tasks will discharge their duties in a professional, independent manner without the influence of outside forces. The Archbishop did his job. Unfortunately, I do not believe the Archdiocesan Legal Committee did their job as they should have, as they were required. Rather, they appear to have fallen victim to both bad judgment and party politics by not condemning those professors who were abusing the disciplinary process during this incident and by blaming Fr. Dragas for delaying his response to the student's appeal and even the students themselves who were not even interviewed.