Columbia's Slow, Secret Steps Toward Justice; Sexual Misconduct Policy Still a Bizarre Patchwork of Outrages

MORNINGSIDE HEIGHTS, NY—Despite all of the fanfare surrounding Columbia University's promulgation two years ago of a so-called "Sexual Misconduct Policy"—a policy touted as a "national model"—Columbia, under intense and broad public criticism, has silently altered the text of its scandalous assault on student rights and decencies. Visitors to the web page of Columbia's nearly two-year-old policy now will find a section that became "effective September 28, 2001." Most of the changes are efforts to move hesitatingly toward meeting FIRE's objections, without a single admission of prior and ongoing injustices. "The flawed policy was nothing less than a systematic withdrawal of fundamental fairness and due process from male students. These secretive half steps toward a modicum of justice are not worthy of a great university," said Alan Charles Kors, president of FIRE.

Nonetheless, the changes indicate that Columbia is beginning to understand the infamy of the policy it had so tenaciously defended. For example, Columbia has responded to one of FIRE's most essential criticisms. In the original policy, there was no recording or transcript made of the proceedings, preventing any serious internal appeal or recourse to the real legal system. Instead, the very authors of a judicial decision would "summarize" the case for the official charged with hearing appeals. Now, Columbia University will keep a recording or full transcript of the hearing, thus offering at least a minimal means of legal and moral remedy for the victims of this kangaroo court. A student can now sue the school and have evidence that demonstrates the Star Chamber behavior of this elite university.

Indeed, the changes all seem to be an effort to respond somehow to FIRE's initially private appeal to Columbia University's administration and trustees, an appeal that Columbia had rejected out-of-hand. FIRE's appeal, had it been followed in good faith, would have spared the Columbia community ignominious public shame. As Justice Brandeis rightly observed, however, "Sunlight is the best disinfectant," and FIRE's public campaign against the nightmare of Columbia's sexual misconduct tribunal has produced some important concessions. Now that it actually specifies the procedures under which a student will be tried, the policy has almost tripled in length. The revised policy at last declares that a student is to be presumed innocent until proven guilty by "clear and convincing evidence." The original policy offered no such presumption and specified no burden of proof. In addition, the policy now permits those involved to view witness testimony on closed-circuit television, and grants that accused individuals must be informed of their rights.

"Despite these attempts at reform," Kors said, "Columbia's sexual misconduct policy is still a bizarre patchwork of outrages and injustices."

"If Columbia saw the indefensibility of a forever secret tribunal, and the legal liability this created, then why not admit such a crucial fact and publicly announce that it had benefited from the public criticism that it had decried as 'outside interference'?" Kors observed. "Perhaps Columbia does not want to offend those zealots who insisted on a sexual inquisition and does not wish to give heart to those trying to undo this disgraceful policy. This shows they now know what we have known for a long time: Columbia's agenda on 'sexual misconduct' cannot withstand public scrutiny." Under the new version of the policy:

• Columbia still denies accused students the right to face their accusers, allowing them to be present for their accusers' testimony only if the accusers consent.
• Columbia still denies students the right to cross-examine witnesses, requiring that all questions for witnesses be submitted to the hearing panel for approval.
• Columbia still denies students the right to effective legal representation.
• Columbia still denies students the right to an effective appeal. Columbia still insists on applying a gag order on students, meaning that an accused student could not discuss the case outside a pre-approved circle of people.
• Columbia still requires the hearing to be held by "specially trained" individuals who are "educated" on sexual misconduct by the Sexual Misconduct Office.
• Although Columbia now keeps a transcript, it is kept for the benefit of "the panel and for purposes of any appeal"—meaning that the student and the public still may not have any access to this secret record of a judicial proceeding.

FIRE has previously noted that, despite Columbia's claim that the policy is an unfinished piece of work, one student already has been punished under this amorphous and fluid policy. As reaffirmed by these recent actions, students at Columbia face punishment under a policy that could change at a moment's notice, and without any warning.

"This policy is still very bad news for justice and decency," observed Kors. "Now, given the inexcusable secrecy surrounding the decision-making process, Columbia continues to embarrass itself with irrationality piled upon irrationality. George Rupp, the Columbia president who oversaw and implemented this nightmare, is damaged goods in the eyes of decent people. Let us hope that incoming President Lee Bollinger restores justice and fairness at Columbia."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, due process rights, freedom of expression, and rights of conscience on our campuses. FIRE's efforts to preserve liberty at Columbia and elsewhere can be seen by visiting www.thefire.org.

Contact:
Thor L. Halvorssen, FIRE: (215) 717-3473; fire@thefire.org
George Rupp, President of Columbia University: (212) 854-2825; rupp@columbia.edu
Misumbo Byrd, Columbia Office of Sexual Misconduct: (212) 854-1717; mb2068@columbia.edu
Lee Bollinger, President-Elect of Columbia University: (734) 764-6270; leecbol@umich.edu