FIRE Letter to George Washington University

By April 30, 2001

Dear Professors and Faculty Senators,

The Foundation for Individual Rights in Education unites civil rights and
civil liberties leaders, scholars, public intellectuals, and journalists
across the political and ideological spectrum on behalf of liberty, academic
freedom, legal equality, free speech, freedom of religion, and, in this
case, due process and fundamental fairness on America’s college campuses.
Our web page, www.thefire.org, will give you a fuller sense of our identity
and activities.

The faculty members of an institution of higher learning have a solemn
obligation to pass along to the next generation a university at least as
free, humane, and decent as the institution they inherited from their
predecessors. When freedom and fundamental fairness are threatened at that
institution—particularly when the administration has defaulted on its
obligation to protect these vital and time-honored principles—it is
incumbent upon the faculty senate to exercise its legal and moral authority
to take corrective action.

FIRE is profoundly troubled by the pending implementation of a sexual
misconduct disciplinary policy that lacks even the most fundamental
principles of decency and fairness. The new policy will subject GW students
and faculty to the most severe life-altering disciplinary sanctions with
virtually no procedural safeguards to ensure that the innocent student or
faculty member does not suffer a punishment properly reserved for those
found guilty after a fair search for the truth. Implementation of the new
policy will not only betray the principles that form the foundation of
George Washington University’s reputation and standing as a great
institution of higher learning, but it will subject GW to a withering and
rightful moral criticism. We therefore appeal to your ethical obligation,
common sense, your thoughtfulness, and your sense of responsibility to stop
the implementation of this unfair policy.

Surely, students and faculty at GW should not be less free than students who
attend the New Mount Olive Community College or the University of the
District of Columbia. The privilege of attending George Washington
University should not come at so high a price that it requires students to
give up their natural and reasonable expectation of receiving decent
treatment and fundamental fairness from all of GW’s programs, including its
campus disciplinary system.

A disciplinary system based on secrecy offers the perfect breeding ground
for miscarriages of justice. It contradicts one of the most vital principles
of a free society, as expressed in the words of Justice Louis Brandeis, that
“sunlight is the best disinfectant.”

Sexual misconduct is the type of charge that is most likely to result in
miscarriages of justice due to misidentification in the case of rape by
strangers, and, in charges of rape or other sexual misconduct arising out of
a relationship, due to animus, bias, and false swearing. Procedural
safeguards for the accused in such cases should be stronger, not weaker. In
traffic court, we accept few safeguards; in cases pertaining to truly
damaging charges and penalties, we expect more protections. Indeed, in a
civilized society, the more serious the charges, the greater the protections
offered to ensure a fair search for the truth.

With those procedural safeguards now stripped away by the new policy, a bare
allegation of sexual misconduct—standing alone as a presumption of guilt—can
suffice to justify an expulsion or a dismissal, with all its life-altering
consequences. There is a simple test of good faith: Would you want your
friend, your parent, your child, or yourself tried under such a
fundamentally unfair policy?

Last year, Columbia University adopted a similar code. The deeply flawed and
dangerous Columbia policy is the subject of intense public scrutiny and a
growing coalition has emerged to fight this injustice. Columbia’s policy,
similar to that of George Washington University, has drawn
written criticism from Feminists for Free Expression, the American Civil
Liberties Union, and hundreds of alumni, contributors, and students. It has
also been the subject of strong editorial and other commentary from such
diverse publications as The Wall Street Journal, The Village Voice, and
The New Republic. The battle over the Policy has been duly reported in
The New
York Times,
in which Norman Siegal, director of the New Civil Liberties
Union, said, “It’s a no-brainer, sexual misconduct is a serious and
substantial problem, and Columbia needs to take it seriously. But due
process is equally important.”

Zechariah Chafee, Jr., writing over seventy years ago on the obligations of
non-profit institutions in the Harvard Law Review, advised universities that
“an institution which professes to prepare youth for life in a democracy
might wisely give them an example of fair play when conducting its own
affairs.” In this case, GW’s example to its students is a sexual misconduct
policy devoid of decency and fundamental fairness. Innocent GW students and
faculty can now be sacrificed to an unfair campus disciplinary system solely
because those concerned with the problem of sexual misconduct have concluded
that the ends justify the means.

We would be happy to provide technical assistance to the faculty senate or
the administration should you request it. In the meantime, please vote in
favor of the resolution condemning this indecent policy.

You are the last hope of reason, conscience, and decency at George
Washington University.

Very truly yours,

Thor L. Halvorssen

Executive Director

Schools: George Washington University