Blind Justice on Morningside Heights


The greatest dangers to liberty lurk in insidious encroachment by men [and women] of zeal, well-meaning but without understanding.

—Supreme Court Justice Louis Brandeis, Olmstead v. U.S., 1928

[The Columbia sexual misconduct policy] adopts procedures and attitudes grossly at odds with generally accepted standards of justice and decency in American judicial proceedings. . . . I say this with great sadness, because I was at one time a postdoctorate research fellow at Columbia, with good memories of my professional development there.

—Michael Kellman, professor of chemistry, University of Oregon, in a letter to Columbia University president George Rupp, October 5

As I noted last week, a convergence of student groups at Columbia—including
Students Active for Ending Rape (SAFER), Columbia Men Against Violence, and Take Back the Night—has convinced the university senate, with the vigorous approval of Columbia president George Rupp, to adopt a sexual misconduct policy that strips the accused of any right to even the minimal basic fairness requirements that courts have spelled out for private universities. (Public universities are held to the standards of the U.S. Constitution.)

Buoyed by their victory, some of the Columbia students involved have been trying to persuade other colleges and universities to adopt similar anti-civil-libertarian policies.

New York University was approached, and on October 12, the Washington Square News, an NYU daily student newspaper, reported that NYU will not go anywhere near such a policy. In a phone conversation, Beth Morningstar, assistant to the vice president for student affairs at NYU, confirmed what she had told the Washington Square News:

“As painful as it may be for victims of sexual violence, it is a fundamental right for an accused person to face his or her accuser. Our policy is aimed at preserving the rights of the accuser and the accused.”

FIRE, the Foundation for Individual Rights in Education (of which I am a board member), is alerting the press and civil libertarians around the country to Columbia’s policy. It has sent out a chart comparing the rights of the accused in college judicial proceedings at the College of Staten Island and Columbia University.

At the College of Staten Island, the accused have the right to hear hostile witnesses, to cross-examine witnesses, to confront their accusers, to be present during the testimony of the accusers, to have an attorney present—and the right to discuss their case outside of the hearing. There is no gag rule limiting what the accused can discuss. And “the college bears the burden of proving the charges by a preponderance of the evidence.”

At Columbia University, under the current sexual misconduct policy, the accused have none of the above-mentioned substantive rights.

As for students’ right to talk about a case outside the hearing—to identify their accusers and the witnesses against them—the Columbia University Policy on Sexual Misconduct states:

“Confidentiality about identifying information regarding the participants in the hearing must be maintained by all individuals involved. . . . Breaches of the confidentiality . . . will constitute separate violations of the Sexual Misconduct Policy.”

You are defending yourself against a charge that could lead to suspension or expulsion, but in gathering evidence on your behalf outside the hearing, you’re subject to this severely limiting gag rule.

And at Columbia, it’s not clear whether the accuser or the accused bears the burden of proof.

You’re much more of an American citizen at the College of Staten Island. Yes, that’s a public college: But are Columbia’s students to lose all basic fairness rights? That is happening, even though Alan Stone, vice president of public affairs for Columbia, stated in an October 11 letter to The Wall Street Journal: “All schools [at Columbia] must meet the basic due process standards established by the University Senate in 1980.”

Those standards are the university’s contract with Columbia’s students, and case law establishes that private universities must abide by such contracts.

During the debate on campus as to whether the faculty senate should agree to the new policy, astronomy professor James Applegate said (Columbia Daily Spectator, February 24): “I’m a little surprised that the students gave up their rights under the American legal system so readily.”

What do they teach in American history courses at Columbia?

Applegate did try to get some due process protections into the policy, but he noted that he did not plan “on making an impassioned speech trying to get the senate to reject this. It’s not my life that’s being governed by this.”

That’s certainly an inspirational model for other educators.

I called David Leebron, the dean of Columbia Law School—one of the nation’s most prestigious. I asked him whether he had anything to say about this remarkable deprivation of Columbia students’ rights.

“The law school,” he told me, “does not subscribe to this new policy.”

That means that students at the law school have escaped the Star Chamber. But the core teaching of this law school, like all others in America, is that there must be basic fairness in all procedures involving a defendant and his or her accuser—especially when the charges are serious. As I will show next week, the leading American authority on due process in disciplinary procedures in private as well as public colleges makes that very point. She is Vivian Berger, a member of the Columbia Law School faculty and also general counsel of the American Civil Liberties Union. And her definitive study was published in the March 1999 Columbia Law Review!

As she has told me, Vivian Berger is, to say the least, deeply concerned about this sexual misconduct policy. She has a long track record as a feminist as well as a civil libertarian, and she emphasizes that this policy “does not advance feminism one bit.”

When basic rights are destroyed, no one benefits, because anyone can become a defendant.

So here we have a leading law school keeping due process for itself and abandoning the students on the rest of the campus. And where is a public statement by the law school about the lost rights of those students? Would you recommend Columbia to anyone applying to undergraduate or graduate school?

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