The Tape Recorder Debate

WILSON: Who are you?

BISHOP: My name is Michael Bishop and I'm a reporter for the Harvard CRIMSON.

WILSON: Are you here as a reporter?

BISHOP: I am here as the person allowed Dean and I'm going to take notes and report on it.

WILSON: Did you come here as an advisor to Mr. Sheppard?

SHEPPARD: He's here as a reporter.

WILSON: Well, I'm sorry, we don't...we allow advisors to come but not reporters.

BISHOP: The capacity in which I'm advising him is reporting it.

WILSON: That's not good enough. Mr. Sheppard can select anybody he wishes in the Faculty of Arts and Sciences as his advisor, including students. If he selects you as his advisor and he tells us he selected you as his advisor we must take that in good faith. If in your other capacity you're a CRMSON reporter, we can't do anything about that. On the other hand...

SHEPPARD: You're just asking us to be dishonest.

WILSON: No, we're asking you to either conform to our rules or to change your behavior. It's your choice.

HAUSLER: It's pretty much a matter of form, isn't it? If you'll just be an advisor...

[Then came some unclear discussion about the previous case of the day in which a CRIMSON reporter had been admitted.]

WILSON: In the previous case the person was invited in at the explicit request of the student who said, "He's my advisor but you should also know that he's a CRIMSON reporter," at which point we said, "All right, if he's your advisor, he's your advisor." We took it at face value. We expect to see a CRIMSON story about it.

HAUSLER: This doesn't seem to be a major...

WILSON: No, I'm trying to explain what cur decision...

SHEPPARD: Yeah, I just don't see any point in pretending that Mike's in any capacity other than...

WILSON: No, there is a point. The point is that if the man who is accompanying you says that he is in fact not your advisor is here as a CRIMSON reporter, there is no reason we should let him in.

PORTE: Then there's no reason at future hearings why any CRIMSON reporters should not be admitted.

SHEPPARD: That's probably true.

HAUSLER: It's a question of your prerogative because it a CRIMSON reporter just comes here and says, "I want to be admitted to Mr. Sheppard's hearing," we won't let him in. It's your prerogative to determine whether or not you want a closed hearing.

SHEPPARD: So do I have the prerogative to make it an open hearing or not?

WILSON: No. It's your prerogative to ask somebody to come as your advisor. You'll have to decide for yourself by making that statement to what degree this places you under the onus of acting insincerely. This is a problem we can't solve for you. All I can say is that we went over this today and we said if a person wants to bring a person as his advisor he can, even if he's a CRIMSON reporter. But CRIMSON reporters can't come in simply to report.

SHEPPARD: But there's another reason for the hearings not being open other than protecting my rights to a closed hearing.

HAUSLER: Listen, can I just clarify? The reason that we made the decision that we did was to...or the grounds on which we made it was that it's the right of a person to be here and the right of him to bring another person with him whom he may call his advisor and for us to try to define what the other person may do with the information he gets here would be infringing on your rights to bring whoever you want. But it's just a question of trying to adhere to your selection of the person you have with you but just a recognition of the relationship of him to you...

WILSON: We want to put the burden on you of inviting him here so that if another student comes in and we ask, "Did you invite this reporter?" and he says, "No," and the reporter looks at him and says, "Well, do you have any objections to my staying?" the student will not feel he is without defenses, that unless he wants to act like an unusual or secretive fellow, he can exclude the person. We want to put the burden of invitation on the student complained against.

[Long pause by all.]

WILSON: In the previous case it took the whole committee to decide it. We can't reconvene the committee...

HAUSLER: I don't see how we can let Hollander in and not let his substitute in.

[ Just prior to Sheppard's hearing, Barry A. Margolin 70 attended a hearing to answer similar charges. Margolin was accompanied by David N. Hollander 71, also a CRIMSON reporter, who Margolin said was his "advisor." The hearing panel then recessed and the full Committee met and decided to let Hollander remain as long as Margolin claimed he was an advisor. ]

PORTE: No, but the important thing for us to make clear is that the meeting is not open to reporters from the Harvard CRIMSON. If you wish to bring as your advisor someone who happens to be a reporter, that's your decision in this case, but the principle to us is very important that these meetings not be open to CRIMSON reporters...

HAUSLER: That anybody who is a reporter cannot just walk into your hearing as a reporter. It seems to me that this isn't such a case and that Mr. Sheppard has brought his advisor-reporter and that...

WILSON: The three of us probably have slightly different views of what is at issue and what should be done. My tentative reaction is that I don't think we ought to try to settle it among ourselves. My impression is that it is precisely issues of this sort that constitute major precedents in government that determine their actions and the action of successive bodies. We did work out an agreement with the full Committee that to my understanding did not clearly embrace the present case though I can see how it can be construed to.

HAUSLER: What's different about this case from the previous one?

WILSON: Because in the other case the person said, "I am coming as his advisor and in addition I intend to report for the CRIMSON" [unclear]. Now we could let it drift at that but if there is any serious difficulty, the thing to do, it seems to me, is to postpone the hearing and go back to the Committee and come back again.

PORTE: We shouldn't waste his time arguing about this.

HAUSLER: Can't we just accept the [unclear] and let it drift? It seems that we have the exact same situation here whether or not these people are describing it differently from the way Margolin and Hollander described it, it's precisely the same situation. I don't really see the...

WILSON: How do you feel, Joel?

PORTE: I think in terms of substance, I think you're right; however, there is another issue at issue: the tape recorder.

WILSON: Well, let's dispose of the first issue first.

PORTE: If Mr. Sheppard has brought this man as his advisor...

WILSON: If he's brought him at his invitation, we probably can't insist too strenuously that he stand up and use the word "advisor."

ANDERSON: We are free to change our procedures in the future and ask the advisor to certify that he is an advisor.

HAUSLER: Following our previous procedure, would we then get our own tape recorder?

WILSON: Oh yes, I think if Mr....um...if we have a reporter here, we have to have our own tape recorder. That was the decision of the Committee and we certainly can't change that.

PORTE: There's a separate question of the tape recorder.

HAUSLER: I think we can just let the reporter take notes.

[Unclear portion of tape.]

SHEPPARD: What difference does the tape recorder make?

WILSON: Frankly, I feel it's a rather important one, It's the difference, for example, between a press conference on the record and a press conference that's paraphrased.

PORTE: I think that's true. I, for example, would not authorize a tape recording to be used publicly of what you said and what I said. Do you agree?

WILSON: Just as the student has the privilege of denying us the right to release without his permission what is said here, except in the case when we are recording because the person has announced his intention to report in the CRIMSON what is said. I just don't see how we can continue with the present hearing.

PORTE: I don't think we can. I think we should reschedule the hearings.

HAUSLER: What if we asked these guys, if we can accept the idea of having a reporter-advisor, and they don't insist on the tape recorder, why can't we go ahead and continue?

WILSON: Do you think the tape recorder is essential? It's not proved essential to most other cases.

SHEPPARD: I think it's important to have a tape recorder. I think it relates in a let of ways to the reasons why most trials are held in public, why most trials aren't held in closed sessions.

WILSON: This isn't a trial, this isn't a criminal court. This is a disciplinary body of the University which is a free and private association, and it's trying to decide who among its members should be among its members. We don't follow the rules of a criminal court, we don't swear in witnesses, we don't exclude hearsay evidence, we don't exclude irrelevant matters...

SHEPPARD: I think the reason still remains that it's the protection of my rights to a fair hearing to have the matter available as evidence in case I think I haven't...

HAUSLER: If we make a tape and that tape is available and potentially a transcript is available on any disputed questions of fact, that would seem to solve that.

SHEPPARD: I'd have a lot more faith in the recording that I made.

WILSON: Do you think we might tamper with our recording?

SHEPPARD: I don't know. There's no basis on which I can...

WILSON: What if we took our recording and turned it over to a lawyer or a bank officer and said, "Hide it until both parties agree that it might be necessary to use it and then take it out."

SHEPPARD: Can we make a public transcript from the recording that would be available? What would be facts were, I think you'll find the difference?

PORTE: We don't make public transcripts available.

SHEPPARD: That would be a major condition. I would want to have a transcript that I know I could make public, that I could show people if I didn't think I received a fair trial, a fair hearing. That's the reason for the tape recorder.

WILSON: If he insists on a tape recording of his own, it seems to me that we have to postpone the hearing.

SHEPPARD: There's a precedent for it. A tape recorder was used at a previous hearing.

HAUSLER: Yes, the idea there was...

WILSON: They did something that was not authorized by the full Committee without repudiating it but at the same time in exchange for the privilege, the person who used it signed a statement indicating that he would not make it public. It was for his own information. He did not make it public. So that's not really a precedent in this case.

HAUSLER: It seems that as far as the facts, that there will be a tape for appeal of fact.

SHEPPARD: Yea, but the appeal is to the same group that held the original trial.

HAUSLER: That's a different question. That's a different question. But as far as determination of what the hearing is much more informal. It's more in the nature of a discussion, but if it comes to a question of what anyone said, it'll be on the tape, and that seems that that can be a resort, but as far as your own tape recorder and your own insistence on publishing a transcript, if that goes against what you want...

SHEPPARD: The reason I think it's important for me to have that available is that if I don't receive a fair hearing I think the only recourse I have is to convince other people that I haven't received a fair hearing so that they would support me on that. I think that if I didn't receive a fair hearing from the Committee I don't think it would be very likely that at my appeal I would receive a fair hearing. I don't have any real reason to expect to receive a fair hearing.

WILSON: The Committee has often reversed the decision of hearings. I can assure you of that.

SHEPPARD: But I don't have any inherent basis for expecting to receive a fair hearing the second time if I didn't receive one the first time. The only recourse I would have in fairness would be to convince other people that there was something wrong with the procedure followed and I would need evidence to convince them of that.

WILSON: The community is not going to decide on your case. This Committee will decide. Nobody else.

SHEPPARD: Yeah. but what I'm saying is that the only recourse I would have is to try to convince people to do something about it if I didn't receive a fair hearing.

WILSON: Well, they have a case. But it seems to me there's simply no grounds for authorizing someone other than the Committee to make a recording of the proceedings to remain in effect in their possession unless we get instructions from the Committee authorizing us to deal, when the time comes, in laying out for us the conditions under which it should be done. If Professor Porte does not want to have a recording made of his statements by a third party, and that is my view, then it seems to me we ought to reschedule the hearing, go back to the Committee with the whole issue of recordings before them, and get a carefully worked out procedure rather than improvising something here. Anything we worked out here would be improvised, and I suspect that both parties would at some point come to regret it, because it wouldn't take into account everyone's interests. My proposal is that we reschedule the hearings for a mutually convenient time that can be found and in the interim we get instructions from the full Committee as to the use of student tape recorders.

SHEPPARD: Could you explain, or could anyone explain, the reason for being afraid to have people know what you said at the hearing?

WILSON: It's hard to answer that. The issue is not whether we're afraid to have people know what was said. We are trying to protect what to us is...Do you have the tape recorder on now?

SHEPPARD: Yes.

PORTE: Yes. he does.

[Long pause.]

PORTE: I don't see how we can accept a discussion of the propriety or impropriety or of the desirability or the undesirability of having a tape recording made by the student, while the student has a tape recorder going.

WILSON: I wasn't aware it was on. I have nothing further to say.

SHEPPARD: But we haven't begun the hearing.

PORTE: I didn't authorize your recording my voice. We were discussing the question of using the recorder.

SHEPPARD: I very publicly turned it on.

[At this point, Wilson got up to leave.]

PORTE: We'll reschedule the hearing and bring the matter before the full Committee.

[Everyone then left the hearing room.]