I write as the parent of recent graduates of Columbia College (’94) and Barnard (’99). . . . What possible excuse can there be [in the Columbia Sexual Misconduct Policy] for denying the possibility of cross-examination or . . . the right to have counsel, given that in most cases, the charges involved will be tantamount to allegations of outright criminal behavior?
If this had been in place while my kids were at Columbia, I might well have decided to save my $25,000 a year by sending them to a public university where the constitutional constraints on state action would at least prohibit this kind of egregious kangaroo court. —Norman Levitt, professor of mathematics at Rutgers University, in a letter to Columbia University president George Rupp
Along with New York University, Rensselaer Polytechnic Institute has now refused to accept Columbia’s blueprint for a “kangaroo court”—its sexual misconduct policy. Columbia’s administration and faculty can save themselves further embarrassment and humiliation by reading the definitive article on disciplinary procedures at both private and public colleges. It was published right at home—in the March 1999 Columbia Law Review.
The authors were two Columbia Law School professors, Vivian Berger and the late Curtis J. Berger.
I have read the article and spoken to Vivian Berger, who is also general counsel to the American Civil Liberties Union. Professor Berger, in view of her extensive research on this issue and her own experience as a nationally recognized civil libertarian, wields particular authority in her opposition to Columbia’s sexual misconduct policy.
Her fields of expertise also include criminal law and contract law. Contract law applies when a college guarantees certain rights to students when they register. Alan Stone, Columbia’s vice president for public affairs, has stated that “all schools at the university must meet the due process standards established by the University Senate in 1980.”
In their Columbia Law Review article, “Academic Discipline: A Guide to Fair Process for the University Student,” Curtis and Vivian Berger studied the disciplinary procedure at over 200 American private and public colleges and universities. All were asked to respond, in detail, to a questionnaire on their standards of fairness.
In their conclusions, the Bergers argued that fairness at both private and public colleges has to include, among other elements: “the right to retain counsel, to have access to a hearing transcript, to receive adequate time to prepare, to confront and cross-examine adverse witnesses, to be notified of the school’s witnesses and evidence, and to call one’s own witnesses.”
As my previous columns have shown, Columbia’s policy is severely deficient in some of these fundamental requirements.
In her comments to me, Vivian Berger emphasizes the policy’s denial of the accused student’s right to confront and cross-examine the accuser and the accuser’s witnesses. She also criticizes the denial of the right to have an attorney present, even during an appeal. Appeals are solely by the dean, who, as the policy states, “relies solely upon the written record and does not conduct a new factual investigation.”
Since the dean doesn’t investigate further, how can the accused bring forth new evidence? And since there has been no cross-examination of his accuser and her witnesses, what kind of a fair, complete written record can the dean rely on to be just in the appellate process?
In their article, Curtis and Vivian Berger say it plain: “We have argued that college and university students possess a legally protected interest in their education, at the school which they are attending. This thesis implies that all students, whether at public or private institutions . . . are entitled to certain procedural safeguards. These should be commensurate with the nature and severity of the charges. Hence, they must be protective when a finding of guilt risks long-term suspension or expulsion of the student.” (Emphasis added.)
Vivian and Curtis Berger also pointed out that “contract law becomes the bulwark for the private school student, and there is no reason why that protection should ordinarily be less than a public student receives under the federal Constitution. In some instances, contract law may afford even greater [due] process.”
Columbia University’s contract with each of its students does guarantee due process—as Alan Stone, Columbia’s spokesman, has stated unequivocally. The Bergers write: “That Contract is formed when an accepted student registers.”
As for the crucial right of the accused to confront and cross-examine his accuser and the other witnesses against him, the Bergers emphasize:
“The accused student fails to receive fair treatment when members of the panel alone are allowed to confront the witness. . . . Only the student himself will have the requisite intense stake in challenging the witness as vigorously as possible.”
At the end of their article, Curtis and Vivian Berger quoted Supreme Court Justice Louis Brandeis’s dissent in the first wiretapping case, Olmstead v. United States (1928), in which the majority of the Court opened the door wide to all the subsequent invasions of our privacy:
“Our Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example.” The Bergers added: “Much the same can be said of the university. For good or ill, professors teach outside as well as inside their classrooms . . . administrators, too, likely fulfill this function at times.”
At Columbia, the overwhelming majority of professors and administrators who have supported this policy—or remained silent—have taught their students that contracts can be broken and rights trampled for a “higher good.” And the university’s principal teacher, President George Rupp, is in urgent need of a remedial course in fairness with Columbia professor Vivian Berger.