Original Article: http://dartreview.com/archives/2001/10/29/due_process_and_sexual_harassment_at_columbia.php
Monday, October 29, 2001
Columbia University's new Sexual Misconduct Policy has proven controversial for conservatives and liberals. The unlikely coalition includes Village Voice columnist, Nat Hentoff, who has said that he had 'never seen so outrageous a violation of minimal fairness,' Femininsts for Free Expression, the Heritage Foundation, and the Foundation for Individual Freedoms in Education (FIRE).
In February 2000, after months of student activism calling for a change to Columbia's Sexual Misconduct Policy and for the founding of an Office of Sexual Misconduct Prevention and Education, the Columbia University Senate released the new policy. Soon thereafter, Columbia hired Charlene Allen as the Coordinator of the new OSMPE.
The policy defines what constitutes sexual misconduct and outlines hearing procedures for complaints brought forward. Under the new guidelines a 'charged student [is] not permitted to cross-examine witnesses, be present during testimony, and review full transcripts of the proceedings occurring in his absence.'
Columbia set out to make the atmosphere of the hearing non-adversarial so as to not 'have a chilling effect on students coming forward.' The policy prohibits the accused student from having a lawyer present. He or she is allowed, however, to have a student from Columbia as something of a morale booster. The morale booster may not ask questions or speak before the judging panel. He may pass notes to the accused party in a 'non-disruptive manner.'
Both the accused student and the accuser cannot cross-examine witnesses or be present in the courtroom while the other party is testifying. The original draft of the proposal did not give the two parties the ability to obtain transcripts of the testimony. After some 'clarifications' during April of this year, however, a special committee decided that the accused could watch the testimony via closed circuit TV. In regards to evidence the policy also says, 'Conformity to the legal rules of evidence shall not be necessary.' The accused student also may not 'prevent the consideration of relevant evidence.'
Two deans and one student judge the case. All panelists are 'educated regarding the psychological, social, and legal issues related to sexual misconduct.' The two deans on the panel must agree on a decision, but the student member may disagree and write a dissenting opinion. The panel 'must be convinced by clear and convincing evidence that a violation of the sexual misconduct policy has occurred, but unanimity of the panel is not required for a finding of a violation.'
Public scrutiny of the policy first came in August of 2000, when FIRE wrote a letter to the Columbia Board of Trustees voicing their concerns about the civil liberties of students tried under this policy. The Trustees responded, confirming their support of the policy. FIRE brought the story to the attention of the Wall Street Journal. On October 4, 2000 the Journal wrote an editorial accusing the administration of 'wanting to put an end to the basic principles of due process.' In November, Hentoff wrote his three columns about the policy in the Village Voice. Voices in opposition quickly grew to include The Boston Globe, The Heritage Foundation, Feminists for Free Expression, the Columbia chapter of the ACLU, and the New York Civil Liberties Union.
The creators of the policy, including Charlene Allen, had hoped that other schools would follow Columbia's lead. The opposite has been the case. NYU has said, 'a fundamental right for an accused person to face his or her accuser. Our policy is aimed at preserving the rights of both the accuser and the accused.' Rensselaer Polytechnic Institute also denounced the policy. Earlier this year the faculty at George Washington University rejected a similar plan 15-0. The faculty specifically denounced Columbia's policy at the meeting.
In April of this year, Columbia's administration put together a special committee to make changes to the policy in response to national criticism. This committee ordered that closed circuit TV be used during the proceedings. Outraged, Charlene Allen quit her post as coordinator of the OSMPE, accusing the administration of giving into FIRE and other groups. Oddly, the University backtracked and began to call the policy a 'draft.'
Columbia has been loathe to comment publicly concerning the policy. The administration refused to appear on news programs and did not send a representative to a campus-wide discussion about the policy.
Misumbo Byrd, the fourth Coordinator in seven months, now heads the OSMPE. She has said publicly that she is willing to look at the flaws in the policy, but no real action has taken place. FIRE hopes the installment of Lee Bollinger as President of the University will bring about a change of policy. He will replace current president George Rupp in the summer of 2002.