The Burning Question for the New Year: What Will Come of the Pepper Spray Investigation

I note another Op-Ed, written this time by entomology professors Walter Leal and James Carey.  Their central argument that the faculty should speak for themselves and that we ought to “abide by the vote of the majority regardless of the outcome” is fine, though it comes across really as too much inside baseball, embodying some internal battle for the university.

Survive a week after a huge crisis, and you have a great chance of surviving the crisis all together.  The most likely time that someone resigns is during the heat of a crisis – a fact that should be considered thoroughly when criticizing that heads must roll in any crisis.  If the head doesn’t roll fairly quickly, there are good reasons to believe the head will never roll.

I still believe that heads will roll in this because they almost have to.  The rule of thumb is that, while responsibility should flow from the top down, blame moves from the bottom up.  Those at the bottom are most likely to take the blame for any transgression and that means that Lt. John Pike is gone.  The only question is whether the police chief and chancellor go with him.

As I have said before, I think the chances of the chancellor going at this point are quite remote, and it would take a lot of findings to get there.

The first key finding is that the use of force was unlawful.  I know people will disagree on this point, but this one is close to a slam dunk.  Are the protesters blameless?  No.  Could they have avoided the pepper spraying?  Certainly.   But at the end of the day, they are rank amateurs.

You have to hold people in authority and people with specific training and expertise to a higher level than the average person.  Whether you look honestly at the use of chemical agents protocols or case law on the use of force, you can’t find justification for pepper spraying here.

Even if you want to interpret chants from the protesters as actual threats – and I think that’s very questionable – you still have a good deal of time removed from those chants to show they were not imminent and credible threats, you have the actions of the protesters sitting on the ground, and you have the fact that Lt. Pike very calmly and casually walked through the protesters to bathe them in spray.

No investigation is going to vindicate the use of pepper spray here.  That gets Lt. Pike, and it probably gets Chief Spicuzza as well, if it can be shown that she was involved in the decision to use pepper spray, and I just cannot believe that a lieutenant is going to escalate the use of force on protesters without clearing it with his bosses.

The question is how Chancellor Katehi would have to go down on this.  And that is where I think she ends up surviving.  You would have to show either that she ordered the use of force or did not stop its use when she knew it would be used.

She gave the order to clear the area, but has denied ordering the use of force.  So, unless there is a written communication that pops up to the contrary – unlikely that she would have been that foolish – or someone claims that she gave the order – I think it will be hard to prove she gave the command.

That sets up a much more subjective and difficult charge to sustain – basically something tantamount to lack of institutional control.  This is one of the death blows that the NCAA uses in sports when there are a series of questionable or illegal practices that they cannot directly pin on a university.

Of all the complaints against Chancellor Katehi, this is the one that has the most meat on it.  We know from Kristin Stoneking’s letter relaying information from Griselda Castro that a few things had happened previously that could have been seen as a prelude to this event.

First, there was a Mrak Hall protest in which the police showed up in full riot gear. When complaints were made, the administrators put the onus on the police and also blamed it on fatigue suffered by administrators.

But just as crucially, the chancellor was seen as preoccupied – as Ms. Castro put it, triple-booked.

So you have a pre-event incident in which the chancellor was too busy doing other things to have direct control – you have a case that her lack of administrative control may have contributed to the event.  What you have now is not malice but negligence, and possibly incompetence.

However, all of this is very subjective.  Unless further documents and communications surface, it would seem unlikely this is enough for the powers that be, who seem content with Chancellor Katehi’s contrition at this point, to terminate her and certainly not enough to force her to resign.

So, barring a smoking gun, the investigation is likely to show the use of force unjustified, and put the onus on the police rather than the chancellor’s office.  The chancellor may come out looking out of touch and not in control, but that will not be enough to dismiss her.

All of this is predicated on no smoking guns and the belief that if there were something really damning to the chancellor, we would have found out about it by now.

None of this will satisfy the protesters and students angered at what has transpired.  Bear in mind, the real problem is not Chancellor Katehi at all and would not be solved by her departure.

Recall the legislature’s role in the cutting of education funding.  Recall the fact that the chancellor was hired by the same or similar Board of Regents currently in place, and therefore they would be inclined to hire someone who resembles Chancellor Katehi.

At this point, I believe Lt. Pike will be gone, the Chief might be gone as well, but the chancellor will keep her job unless there is a repeat of this – which also seems unlikely.