FIRE’s Letter to Dean David Leebron

By September 6, 2000

September 6, 2000

Dean David Leebron

Columbia University Law School

435 West 116th Street

New York, NY 10027

Dear Dean Leebron:

We are writing to you—in our capacities, respectively, as
Co-Director/Vice-President and as Legal Director of the Foundation for
Individual Rights in Education (FIRE)—regarding a situation that arose
last year at Columbia University Law School concerning a criminal law
examination given by Cardozo Professor of Jurisprudence George P.
Fletcher. While our initial instinct was to write to the University’s
Board of Trustees on this matter that we consider fundamental to the
survival of academic freedom at the Law School, we have decided instead
to write to you in the first instance in order to see if the matter can
be resolved satisfactorily.

As you can see from the list of our Directors and Board of
Advisors, FIRE unites civil rights and civil liberties leaders,
scholars, public intellectuals, and journalists across the political
and ideological spectrum on behalf of liberty, legal equality, free
speech, freedom of religion and conscience, fair procedure and due
process, and, as in this case, academic freedom, on America’s college
and university campuses. Our Web page, www.thefire.org, will give you a
fuller sense of our identity, interests, and activities.

We are writing to you in your capacity both as Dean of the Law
School and as a major actor in the scenario that unfolded in the
aftermath of Prof. Fletcher’s exam. The dean of an institution such as
Columbia Law has a solemn obligation to defend academic freedom. When
freedom and fundamental fairness are threatened, it is incumbent upon
the dean to exercise moral authority and leadership. Failing that,
moral and legal authority devolves upon the Board of Trustees.

* * * *
The history of the controversy is probably fresh in your mind, and
so we need not linger too long on the details. However, a brief
exposition of the matter is required in order to make clear our
concerns.

Prof. Fletcher is widely regarded as one of the leading
scholars of criminal law in the United States. His four books on
criminal justice are read in a half-dozen languages all over the world.
He taught his basic criminal law course in the Spring 1999 semester.
The examination consisted of three questions. The question that sparked
the controversy was entitled “Revenge of the Big Monkey.” It presented
a hypothetical question that was nonetheless based upon facts found in
a number of actual cases. It was the story of an “anti-fertility” cult
that sent one of its members out on the street to “hunt out pregnant
women and kill as many fetuses as he can.” In the course of performing
his bizarre duty, “David” attacked three women.

While the violent nature of the hypothetical raised some
controversy within the Law School community, the portion of the
question that seemed most controversial involved the last victim of
David’s assaults, a woman named “Gaye,” who had been seeking, without
success, an abortion of an unwanted fetus she was carrying. After
David’s attack succeeded in killing her fetus, Gaye “tells the doctors
that she wants to write a thank you note to her assailant.” This detail
injected into the controversy, above and beyond the “violence against
women” theme, the notion that somehow a woman can be asking for an
attack or might actually be thankful for the violence visited upon her.
(A copy of the exam question at issue is found at Appendix “A”.)

In ordinary times, reactions to these kinds of violent and
bizarre themes in issue-spotting criminal law hypothetical questions
might be either subdued or non-existent. In our politically contentious
times, however, a revulsion against the exam question was visible in
some quarters, resulting in criticism of the professor. Of course, one
cannot fault students and faculty, and even a dean, for having their
emotional reactions to an exam question like this. Despite the fact
that violence has been part and parcel of the criminal law from time
immemorial, it is understandable that in times when certain issues are
politically at the forefront such questions will evoke a particularly
intense response from some. Indeed, both of us have had or continue to
have active criminal defense practices, and we each have had cases the
horrors of which linger in our minds, stomachs, and souls still.

However, it was the response of official power—in this case,
your office—that provokes FIRE’s concern. As you reported to Prof.
Fletcher, several students contacted you and complained about the exam
because it allegedly raised “legal questions under the rubric of
creating a ‘hostile environment’ for women.” Instead of dismissing this
legal contention out-of-hand, you wrote to Prof. Fletcher that the
women’s complaint constituted “a plausible suggestion of liability
an[d] unlawfulness.” You went on to write to Prof. Fletcher that as a
result of the women’s complaint “I am required to consult with the
University’s office of legal counsel, which I expect to do within the
next couple of days.”

You noted as well that “several faculty have apparently read
your exam, and expressed serious concerns to me about it.” You wrote
ominously to Prof. Fletcher: “Whether or not the faculty will be asked
to take up the matter in any form is at this point speculative, but
given the strong views voiced by some, it is not beyond the realm of
possibility.” While the faculty is free, of course, to take up any
issue it wishes, this statement, in the context of your
letter—indicating possible legal violations for “harassment”—sends the
message that the Faculty might, if it wished, take action against Prof.
Fletcher.

We want to make clear that we have no complaint concerning that
part of your correspondence with Prof. Fletcher in which you expressed
your personal concern about Prof. Fletcher’s judgment in giving a
criminal law exam that “would be perceived by women” in a negative
fashion and might “shock” them. All of us have our own pedagogical
views as to how best to challenge and teach students, particularly in
the sometimes-ugly world of criminal law. While the two of us
personally believe that students studying law and, in particular,
planning to become practicing lawyers need to acculturate themselves to
the harsh and real world in which criminal law is practiced, and while
we know of no subject worth teaching that is not guaranteed to offend someone, there is surely room at the academic table for those who are more squeamish.

However, when expressing your personal predilections in the area of
teaching criminal law, you went on to suggest legal liability on
Columbia’s part: “While we are free to a large extent to ‘shock’ our
students and force them to deal with difficult and sometimes unpleasant
problems, that does not legally justify creating an environment which
will negatively affect one group’s performance more than another’s.”
The notion that Prof. Fletcher, by giving an exam using a shocking
hypothetical, somehow discriminated against women and did so in an
unlawful manner, is unacceptable to anyone concerned with academic
freedom. It is also a bizarre interpretation of civil rights law.

We are equally concerned about a later memo you wrote to Prof.
Fletcher (this one dated 11/15/99), in which you said that after the
students “mentioned they considered some of the conduct they referred
to as leading to the creation of a ‘hostile environment,’” you actually
conferred with general counsel, and “General Counsel’s office suggested
this was perhaps a plausible claim, although they didn’t know of
precise precedent.” In that same memo, you responded to Prof.
Fletcher’s expressed concern about academic freedom by writing that he
“MAY be right that the content of an exam falls within the protection
of what we in our community regard as academic freedom.” [upper-case
emphasis in original] You went on to discuss the offending exam
question, analyzing the problem as follows:

      From my point of view, the fact that it is deeply upsetting

 

      and offensive primarily to one segment of our population is part of its

 

      unacceptability in terms of the standards of our community. In

 

      addition, it basically makes light of a profound social problem, namely

 

      violence to women. The suggestion that one of the victims wanted to

 

      thank her attacker is both preposterous and revealing. Again, it MAY be

 

      that this falls within the rubric of academic freedom, but an

 

      examination in a large course is a public act, and the same notion of

 

      academic freedom allows students and colleagues (including me) to

 

      express our views on that exercise of academic freedom as it affects

 

    members of our community.”

Of course, you and others are indeed free to express views on
the exam and how it conflicts with your notion as to what “the
standards of our community” are or should be. However, the notion,
repeated again in this quoted portion of your letter, and again
emphasized in upper-case letters, that the exam “MAY” be protected, is
very disturbing. Surely the exam IS CLEARLY protected. Further, we find
it very unsettling that the dean of one of the world’s major law
schools not only would think that this exam might constitute a legal
violation, but also would fail to understand the pedagogical reason for
the inclusion of an unappetizing detail (which you termed “both
preposterous and revealing”) such as “the suggestion that one of the
victims wanted to thank her attacker.” (It is obvious to us, and to
numerous other lawyers and law professors to whom we’ve spoken, that
this detail was included in the exam hypothetical in order to inject
into the problem the issue of what constitutes “consent” in an
assaultive situation and how such consent might affect the ultimate
issue of criminal liability.)

However, the major objection we have to your response to the exam
was not your failure to understand its pedagogical value, but your
refusal to acknowledge that virtually any exam question conceivable,
and surely this
exam question, is protected by even the narrowest reasonable
interpretation of academic freedom and is by no stretch of the legal
imagination classifiable as unlawfully creating a “hostile
environment.” In reality, what has happened here is that some faculty
members and students have attempted an exercise in point-of-view
censorship because they do not like either Prof. Fletcher’s teaching
methods or his ideas.

* * * *
There is another issue that disturbs us. As noted, you warned Prof.
Fletcher that the faculty might be “asked to take up the matter in any
form.” You appeared to question the appropriateness of Prof. Fletcher’s
teaching courses such as first year criminal law. Such a course is
mandatory, and therefore some women law students would be forced to
take a class with Prof. Fletcher. (We note, parenthetically, a comment
in The Columbia Spectator
of 9/23/99, that one “student suggested that Fletcher should no longer
teach first-year Law students.”) This hint that somehow a female
student should not be forced to deal with Prof. Fletcher is further
strengthened by your remarkable admonition to him, at the time of the
controversy when he was trying to ascertain the views of his students:
“I must emphasize that because of potential liability issues, you must
not at this point directly contact students regarding this matter.”

While no formal reprimand came from the faculty, there
was a disturbing aftermath that leads one to the conclusion that your
lack of support for Prof. Fletcher caused a faculty committee to act on
the assumption, so clear from your memos, that he was somehow dangerous
to women law students and that they therefore should not be forced to
take his courses. After the exam contretemps, Prof. Fletcher proposed
that he teach a mandatory course for incoming LL.M. students. The
faculty committee rejected his application to teach this course for
which he was eminently qualified. It is very difficult to avoid a
conclusion, or at least a strong suspicion, that this remarkable action
was taken because of a feeling by some faculty members, and by all
appearances shared by you, that Prof. Fletcher’s exam marked him as
someone who has a problem with women and who therefore should not teach
a required course. The committee issued no reason for rejecting the
application. The rejection of Prof. Fletcher’s application to teach the
graduate course has had a chilling effect on academic freedom. It
should not go unchallenged. Ordinarily, it would fall to the dean to
issue a challenge.

* * * *
We note that, already, this incident has begun its inevitable
journey into the literature of academic freedom. Nadine Strossen,
Professor at New York Law School and current President of the American
Civil Liberties Union, has written of the matter in the new
introduction to the second edition of her highly regarded book, Defending Pornography. Prof. Strossen has focused in particular on your public lack of support for Prof. Fletcher and for academic freedom:

      While no official sanction was imposed against Fletcher, Dean

 

      Leebron’s letter to students conveyed official disapprobation: “On

 

      behalf of the law school, I want to express my regret for the offense

 

    and distress that many of you…experienced.” [at xxxiii]

Prof. Strossen goes on to explain the obvious—why it is simply
unacceptable at an institution like Columbia for there to be any
question concerning the propriety of administering the exam that Prof.
Fletcher gave:

      While some complaints focused on the exam’s “tone,” rather than

 

      the issues it presented, some also opined that any issues of particular

 

      concern to women, such as abortion or bias crimes against women, should

 

      be off-limits as examination subjects. By this standard, I would have

 

      to plead guilty to creating a hostile environment for my female

 

      students by including a question in the final exam for my fall 1999

 

      constitutional law course about the Violence Against Women Act, whose

 

      (un)constitutionality was argued before the Supreme Court in January

 

      2000. The lower court opinions and the lawyers’ briefs, portions of

 

      which I required my students to read, were replete with graphic details

 

    about sexist and sexual violence and abuse against a woman. [at xxxiii]

* * * *
This brings us to the matter of the appropriate remedy. FIRE proposes:

  1. A written directive of decanal policy should be issued concerning the extent
    to which academic freedom broadly protects a professor’s right to give an
    examination dictated by his or her professional judgment. The policy should
    also set forth procedures to be followed in cases in which either students
    or faculty have a complaint concerning allegedly offensive material conveyed
    in class or in an examination. As part of these procedures, the professor
    who conveyed the allegedly offensive material should be consulted. The dean
    should not become involved unless collegial conversation fails to achieve
    a satisfactory resolution. In no event should the professor be advised not
    to contact his or her students unless there is a credible allegation that
    the professor poses a danger. Action should be taken only against a professor
    found to be incompetent or otherwise incapable of fulfilling his or her duties
    properly and in a lawful manner, and then only pursuant to and after procedures
    laid down in writing in advance.
  2. Your office should issue a statement indicating that Prof. Fletcher’s examination
    cannot, by any stretch of the legal imagination, be classified as actionable
    or unlawful, that the exam cannot be deemed “harassment” creating a “hostile
    environment” within the legal meaning of those terms; that the exam is fully
    protected by academic freedom; that there will be no sanctions imposed upon
    Prof. Fletcher growing out of the May 1999 examination; that Prof. Fletcher
    is free to teach any required or elective course within his areas of expertise;
    and that the April 2000 decision of the Faculty Committee that Prof. Fletcher
    not teach the LL.M. course be reversed unless a convincing reason can be stated
    why he should not be invited to teach this course.

FIRE believes that these remedial actions constitute the minimum necessary to
correct the wrongs inflicted not only upon Prof. Fletcher, but as well upon his
students, the institutional integrity and reputation of Columbia Law School, and
the values of free inquiry and academic freedom that are so fundamental to all
that Columbia and liberal education stand for.

Prof. Strossen concludes: “At stake in this situation are not only free speech
and academic freedom, but also women’s dignity and equality.” [at xxxiv] FIRE
concurs. We urgently invite your prompt response.

Yours sincerely,

Harvey A. Silverglate
Director
Vice-President

Nicholas S. Hentoff
Legal Director

Attachment “A”: Copy of Prof. Fletcher’s May 1999 criminal law exam question.

Cc:
Jonathan Cole, Provost of Columbia University
Prof. Lance Liebman, former Dean of Columbia Law School

Schools: Columbia University Cases: Columbia Law School: Threat to Punish Professor for ‘Hostile Environment’ Due to Exam Question