Star Chamber . . . A court or group that engages in secret, harsh, or arbitrary procedures. —American Heritage Dictionary of the English Language, Fourth Edition
The message of Columbia University’s new sexual misconduct policy is that there must be respect for the rights of people out there charged with serious offenses—but not here on campus. There are those at Columbia who want to hang people before trial as the only way to “take back the night.” —Columbia University law professor Eben Moglen, former clerk to Supreme Court Justice Thurgood Marshall
For some 40 years, I’ve been covering student disciplinary procedures at colleges and universitites around the country because Supreme Court Justice William O. Douglas taught me that “the history of liberty is the history of due process.”
The core of the American system of justice is indeed due process: basic fairness in any procedure that can lead to punishment. Public approval of the death penalty is beginning to wane as people realize that the rich do not get executed, and that many of those on death row, not only in Texas, have not received due process.
Students convicted of rape or other egregious misbehavior can not only be suspended or expelled, but the record of those punishments can follow them for the rest of their lives. That’s why due process is essential.
I know that private universities are not bound to preserve the full range of rights that exist for defendants in civil and criminal courts, but case law shows that even private schools must adhere to “basic fairness” in their disciplinary hearings and verdicts.
In all these stories I’ve covered—including having observed campus “trials”—I have never seen so outrageous a violation of minimal fairness as in the new sexual misconduct procedures at Columbia University.
The policy shames the president of the university, George Rupp, and the university senate (77 students, faculty members, and administrators), which voted unanimously to approve these star-chamber rules.
An account of this self-inflicted assault on the university’s reputation was written on the October 6 New York Post‘s op-ed page by a courageous student journalist, Jaime Sneider, editorial page editor of the Columbia Daily Spectator. This is not the first time he has spoken truth to power at Columbia, despite pressure from the administration and some faculty. If I were editor of a newspaper, I’d keep track of Jaime Sneider. He’s going to be one hell of a journalist.
In the Post, Sneider quotes from a letter to Columbia University president George Rupp from the Foundation for Individual Rights in Education (FIRE), which works to protect students and professors throughout the country against attacks on their due process rights by politically correct college presidents, deans, and other bureaucrats. FIRE has raised alarms about the Rupp policy.
In the interest of full disclosure: My son, Nick, is legal director of FIRE, and I am on FIRE’s board.
Even before getting to FIRE’s letter, Sneider points out some of the fundamental civil liberties Columbia destroys in its new sexual misconduct policy: the right to “cross-examine witnesses; be present during testimony [by the accuser and witnesses for her]; have an attorney present during hearings. . . .
“The campaign for the policy has been spearheaded by Students Active for Ending Rape (SAFER), who claim that ‘the fragile and sensitive nature of rape cases and women demand a nonadversarial approach.’ ”
Moreover, as Sneider quotes from the letter to George Rupp and Columbia’s board of trustees, FIRE charges that this new policy “never specifies whether the accused or accuser bears the burden of proof, and what level of evidence must be met for administrators to determine guilt.” The American system of justice requires that the prosecution bear the burden of proof.
At Columbia, it’s now like being tried by a tribunal in the People’s Republic of China. (See Norah Vincent’s Higher Ed column in the October 31 Voice.)
Also, FIRE emphasizes—and this disgraces Columbia University even more—that “if the accused student attempts to investigate the charges . . . or obtain witnesses on his own behalf, he would be subject to a new disciplinary violation for revealing the identities of the accuser or the participants in the proceeding.” England’s Star Chamber proceedings (15th to 17th centuries) were held behind closed doors.
As Jaime Sneider adds: “This framework implicitly requires the accused to prove his or her innocence—but bars any effective means of self-defense.”
Then Sneider further shows how valuable a professional journalist he’s going to be:
“Among those joining SAFER in the Student Solidarity Network (a consortium of Columbia social activist organizations) is the Campaign to End the Death Penalty, which plasters the campus with flyers warning of alleged widespread killing of innocent people via the death penalty.
“Yet SAFER & Co. show no qualms in destroying [at Columbia] the basic civil liberties guaranteed to protect the innocent from unjust prosecution.”
In the October 5 New York Times, Norman Siegel, executive director of the New York Civil Liberties Union, said: “Sexual misconduct is a serious and substantial problem, and Columbia needs to take it seriously. But due process is equally important.”
Columbia president George Rupp and the university’s legal counsel unquestioningly approve this “nonadversarial” policy in the belief, I expect, that Columbia’s status as private university will protect it from lawsuits by students so quickly convicted by this star-chamber procedure—in the spirit of Henry VIII.
Rupp and company could not be more wrong. The first student who insists on clearing his name will surely have a battery of civil liberties lawyers eager to do battle against Columbia.
The ultimate damage will be done to Columbia itself. I have spoken to several professors at universities around the country who say they will no longer advise undergraduate or graduate students to attend Columbia University so long as its current policy on sexual misconduct remains in place.