Saturday, September 05, 2020

John Sherman: An Open Letter to Robert A. Brown, President of Boston University on the Human Rights Implications of the University Decision to Open

John F. Sherman III, the General Counsel and Senior Advisor to Shift, "a leading center of expertise on the UN Guiding Principles for Business and Human Rights [NY and Geneva: UN 2011]" has been a leading and quite influential voice for the elaboration of the business and human rights principles of the UNGP by gatekeepers (lawyers) and other institutions. His work on advancing a deeper understanding of the UNGP, and for facilitating its application to economic activity has contributed significantly to the maturation of the UNGP as a formidable tool for embedding issues of human rights in economic decisions.

Like others, Mr. Sherman has noted with increasing alarm the decision of universities to re-open.  That  alarm has been augmented by the way that such decisions have appeared to have been made with apparent disregard for the human rights sensitive framework within which other, and much more potent, enterprises have come to frame those decisions.  Like others (see, e.g., here, here, here), Mr. Sherman has come to understand the applicability not just of the UNGP to university decision making, but its human rights and broad stakeholder centering approach for making good on the university's constant and unceasing claims to serve as beacons of societal virtue.

The problem, was given quite specific context by the decision of Boston University to resume in person teaching.  Mr. Sherman notes:
The problem arises from the fact that BU has 18,500 student in in a highly urban area, and its buildings abut many residential neighborhoods, including mine. It can’t house all of its students in its own dorms, so many live in off campus apartment buildings near me, in the most densely populated part of Brookline. It also spills over into Allston, Brighton, and Roxbury. However, BU didn’t consult its neighbors about the impacts of reopening. It implemented a massive on campus testing program but didn’t reckon with its inability to effectively control the spread of the virus from off campus parties. BU opened classes on 9/1, so I expect to see a spike among students in the coming weeks. The spread of the virus in surrounding communities will take longer to detect, because most asymptomatic people outside of BU don’t get tested.
Those are the kinds of consideration central to human rights due diligence at the heart of the Second Pillar responsibilities of enterprises to respect human rights. And it is precisely this that the university appears to have neglected even as it produces volumes of writings signalling the virtue of its decisions. That universities face substantial challenges is not to be denied (e.g., Facing $96M Shortfall, President Brown Announces Layoffs, Furloughs) does not change the character of that responsibility, it changes only the specific context on which human rights due diligence is to be undertaken.

To that end, Mr. Sherman (in his personal capacity only) has sent an open letter to  Robert A. Brown, President of Boston University on the Human Rights Implications of its decision to reopen. That Open Letter follows below.  Please feel free to re-post, and share your own experiences with university decision making that fails to undertake the university responsibility to respect human rights  undertaken through the salutary exercise of human rights due diligence. 

John F. Sherman, III 
Brookline MA 02446 

September 4, 2020
Dr. Robert A. Brown 
President, Boston University 
One Silber Way, 8th Floor 
Boston, MA 02215 

Subject: The Health and Safety Impact of BU’s Reopening on my North Brookline Neighborhood
Dear Dr. Brown; 

I am a long-term resident of North Brookline, am a neighbor of BU, and am in a vulnerable cohort for COVID19. On Tuesday, I watched the usual September scrum of U-hauls and SUVs delivering BU students to their off-campus apartments throughout my neighborhood. Few wore masks as they unloaded their belongings. I anticipate with trepidation the coming Labor Day weekend, with its inevitable off campus student parties, and the heightened risk of virus transmission. I never accepted this risk, and BU never consulted me or my neighbors about it. That is irresponsible. 

North Brookline is the most densely populated part of Brookline. It is a popular site for off- campus housing because it’s so close to BU. In addition, the area is home to two public housing projects whose residents are at particularly high risk for COVID-19 because of age, disability, or economic status. 

I am also a former corporate lawyer who has worked in law, business ethics, and human rights for many years. I was deeply involved in the shaping and drafting of the 2011 UN Guiding Principles on Business and Human Rights, which have become the universal global standard for how all business organizations, however organized, should respect human rights. 

The UN Guiding Principles provide an authoritative standard against which to judge BU’s responsibility for the increased risks of its reopening on my neighborhood. For the reasons below, I believe that by physically reopening, BU has not met its responsibility to respect human rights; specifically, the rights of me and my neighbors to health and life. I offer a number of suggestions on how BU can start to mitigate and remedy the risk that it has created for us. 

What’s Happening Now 

BU’s reopening has now put me and my neighbors at increased risk of severe injury and death. My health and longevity (I’m over 70) now depend in part on the self-restraint of hundreds of 18 to 21 year-old students not go to parties in off-campus apartments, even though they have been cooped up in their parent’s homes for the last several months. No matter how many students are present at these parties, the inevitable consumption of alcohol and marijuana will erode any good prior intentions to maintain social distance and wear masks. This will turn the parties into potential super-spreading events. 
I am told that BU does not know where its off-campus students live, because it does not ask them. Many of them live in buildings and share common spaces (e.g., elevators, hallways, etc.) with non-students, including with the elderly, the disabled, and the immuno-compromised. 

To its credit, BU has sternly admonished students not to attend parties indoors with 25 or more persons (which would violate Governor Baker’s 8/7/20 updated gathering order). However, this is mostly gesture, since BU cannot effectively monitor off campus parties of any size, much less ensure that attendees maintain social distance and wear masks. As a result, it is just a matter of time before a super-spreading off campus party with BU students occurs in or near our neighborhood. I anticipate with trepidation the upcoming Labor Day weekend, and the likely off campus student parties. 

My concern is not speculative. The Chronicle of Higher Education reported yesterday that based on its preliminary analysis of case numbers in more than 50 counties with four year students, “Anywhere from four to 12 days after students move into dorms, coronavirus cases shoot up in the county.” This is a particular risk for North Brookline, because so many students live off campus. It’s impossible to separate BU from the local community. 

How did we get here? 

The answer, I believe, is that BU has failed to meet minimal standards of responsibility that society expects from institutions. 

A Professor at BU’s School of Public Health has publicly called upon that school to rescind its reopening on the ground that doing so increases the risk of physical danger to students, faculty, and the surrounding communities. That school is the center of BU’s public health expertise. I also learned that BU’s COVID19 Dashboard uses an inflated denominator that makes its percentage of infected students look lower than it really is. 

These are highly troubling factors. The UN Guiding Principles expect that all organizations (including major institutions like BU), should not harm internationally recognized human rights, including the human right to health and life. They expect that an organization will respect human rights by proactively identifying the risks of harm, engaging with potentially affected stakeholders to understand and address their concerns from their perspective, taking adequate steps to prevent or mitigate likely harm to them, remedying harm that they caused or contributed to, and communicate transparently to stakeholders about what it’s doing. 

However, BU has not taken these minimally responsible steps. 

BU does not have a self-contained campus, nor does it have the physical capacity to house all of its students. Thus, it must rely on off-campus rentals in highly dense neighborhoods such as Brookline, Brighton, AllstonRoxbury, and elsewhere. BU should have quickly recognized the risk of severe physical harm and death to its vulnerable neighbors from off-campus parties, engaged with its neighbors to understand their concerns, and figured out how to prevent and mitigate such harm to them. It did not do so. 
Please correct me if I’m wrong, but BU also appears to have unilaterally assigned itself the goal of trying to keep its infection rates in line with Boston’s. It seemingly ignored the fact that Brookline is rated ‘green’ by Massachusetts (less than 4 average daily cases per 1000,000) and Boston is rated ‘yellow’ (4 to 8 daily cases per 1,000). As long as it tracks Boston’s infection rate, BU can ignore any contribution it will make to increasing Brookline’s infection rate as a result of super-spreading parties in Brookline’s neighborhoods. And as noted by the Chronicle of Higher Education article, BU’s strong presence in residential off-campus communities such as North Brookline increases the risk that Brookline’s rates will go up as a result of BU’s reopening. 

Nor has BU been clear about the infection numbers that it would deem sufficient to require it to go online and require all students to quarantine. For example, last Friday the State of New York issued guidelines for universities and colleges requiring significant changes in operation whenever the number of positive COVID19 cases over a two-week period exceeds 100 or 5% of the campus population (including faculty, staff, and students), whichever is smaller. Is there any valid reason why BU cannot hold itself to such a goal? 

Of course, BU must comply with the law. BU cannot get a pass on acting responsibly by arguing that its goal must limited to complying with minimal legal standards that apply today. Its responsibility to respect human rights is not limited by law. 

I applaud BU for its rigorous testing of students. But the University of Illinois at Urbana- Champaign also has a rigorous mass testing program similar to BU’s. Its numbers are rising rapidly, based on the reckless behavior of a few students, leading to a two-week lockdown. As Rebecca Smith, an associate professor of epidemiology at the school explained, ‘We cannot test our way out of this pandemic.” 

Where Should We Go From Here? 

BU has done little to acknowledge, let alone address, its impact on the health and safety of my neighborhood and the residential communities outside of BU. By inviting thousands of students back on campus, and into off-campus neighborhoods, BU has created a dangerous risk for local communities that requires BU to take strong, robust action to mitigate, in consultation and collaboration with affected stakeholders. 

Here are my suggestions as to what BU can start to do begin to mitigate the risk that it has created:
  • BU should put its Public Health School at the center of its response to the COVID 19 crisis, since the School of Public Health has the right expertise.
  • BU should designate its own “Dr. Fauci”—an independent public health expert—to communicate to all affected stakeholders, inside and outside BU, in a candid and transparent fashion about its performance, identifying both the positives and the negatives.
  • BU should set a realistic and public goal of how many infections will be necessary to significantly change its physical operations, as New York universities and colleges are now doing. This should be done in consultation with faculty, neighbors, municipal and state officials. BU should then fix its COVID19 dashboard to reflect performance in meeting this goal.
  • BU should engage in collaborative and proactive efforts to identify the location of off campus student dwellings that may put vulnerable neighbors who are at high risk of infection from super-spreading parties that BU students may attend. This should be done in consultation and collaboration with neighbors, and municipal and state officials,
  • BU should then warn such neighbors when students in their building have tested positive, taking reasonable steps to anonymize the identify of such students, where that can be done without jeopardizing the health and lives of others.
  • BU should use its leverage to influence the owners of off campus student dwellings to sanitize and ventilate the common spaces of the buildings and to report to the Town and to BU parties that violate Massachusetts and Town laws and regulations.
  • BU should hire police details on weekends to monitor and prevent off campus student parties that likely violate Massachusetts and Town laws and regulations.
  • BU should commit to provide financial, medical, and other remedy where it identifies that vulnerable neighbors have been infected as a result of off-campus parties and other irresponsible conduct by BU students in their midst. 

    I understand that BU would have been harmed financially by moving completely to remote learning. But it is critical that it earns its revenues responsibly, without harming human rights.

    John Sherman 

    Copies to:
    Brookline Select Board
    Mel Kleckner, Brookline Town Administrator
    Dr. Swannie Jett, Director of Health and Human Services for Brookline North Brookline Neighborhood Association 

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