Columbia University Unable to Defend Policy in Public
March 13, 2001
Activist Enemies of Due Process Censor FIRE, Then Make a U-Turn
NEW YORK, NY—The Columbia University administration, although invited by Columbia students, faculty, and parents, did not show up at a campus discussion of its controversial new Sexual Misconduct Policy. A few days later, Columbia refused to participate in a highly rated television news program discussing the policy. Columbia's new sexual misconduct policy lacks even the most minimal safeguards and fundamental principles of fairness. Indeed, it lacks virtually all safeguards long considered by civilized societies to be essential for a reliable search for truth. Columbia came under national scrutiny six months ago when the Foundation for Individual Rights in Education (FIRE) began a campaign to overturn the dangerous and now discredited policy. In the past few weeks, the policy's initial supporters have engaged in ad hominem attacks, public vandalism, censorship, and, in a bizarre eleventh-hour twist, an about-face calling for reform of their own policy.
Currently, any student accused of sexual misconduct at Columbia is denied the right to receive timely notice, to prepare a defense, to confront and cross-examine his accuser, to cross-examine witnesses, to have meaningful counsel, to secure a recording or transcript (there will be neither) of the proceedings, and to an impartial hearing before an impartial tribunal. A broad coalition of critics from across the political and ideological spectrum came together during the past several months, from Ed Feulner of the Heritage Foundation, to Joan Kennedy Taylor of Feminists for Free Expression, to the Columbia chapter of the ACLU and the executive director of the New York Civil Liberties Union. All were appalled by Columbia's denial of due process and its view that women were too weak to live with the safeguards of fundamental fairness.
On February 23, the Columbia ACLU organized a campus-wide event to discuss the policy. The panel included Vivian Berger, professor of Law at Columbia Law School and a member of the national Board of Directors of the ACLU; Karl Ward, Columbia student and chair of the Columbia ACLU's Committee on Disciplinary Procedures; and Harvey A. Silverglate, FIRE's vice-president and a civil liberties attorney. David Annicchiarico, an undergraduate at Columbia and the president of the Columbia ACLU, said that the goal "was to organize an event that would fully represent all of the issues surrounding these policies." It was intended as a frank discussion among people who disagreed about the essentials, and initiators and defenders of the policy had been invited to participate.
Charlene Allen, the Columbia administrator in charge of the Office of Sexual Misconduct Prevention and Education, at first agreed to participate. Her superiors at Columbia announced shortly before the event, however, that she would not be showing up. Allen told the Columbia Daily Spectator: "Our role within the University is to have a direct discussion internally, not with outsiders." Annicchiarico noted that Berger and Ward were hardly "outside" of the community, and that Silverglate's son had just graduated with the Class of 2000. Annicchiarico said: "I cannot help but believe that the Administration is shying away from open criticism and attempting to avoid any situation in which they might lose face."
Annicchiarico also observed: "This is also the reason why we invited members of Students Active for Ending Rape (SAFER) to participate. They were instrumental in getting the new policy passed. However, they have misconstrued our criticism as 'antifeminist' and 'conservative' and declined. Nevertheless, we cannot overlook due process."
Professor of Astronomy James Applegate noted: "I think it's unfortunate that SAFER and Charlene Allen decided not to come. They didn't have the guts to show up." Applegate described the policy as "chilling."
Two weeks after the panel discussion, Fox News ran a segment about the Columbia policy featuring FIRE's Silverglate. Producers of the show invited the Columbia administration to participate in the program. Columbia refused. Silverglate said: "Columbia cannot bear the public scrutiny. They didn't show up at the ACLU event, nor for the television program, because there is no principled defense for their policy." He asked: "How can they justify the stripping away of the due process protections deemed necessary for hundreds of years in a free and decent society? The policy is worthy of the kangaroo courts of the former Soviet Union, the current People's Republic of China, or Spain under Franco. It is not worthy of a world-class university in a free country."
Currently, FIRE has pointed out, students at Staten Island Community College have more due process protections than students at the elite $30,000-a-year private college. Staten Island Community College, which is a public institution, is bound by the protections of the Bill of Rights and therefore has a legal obligation to provide due process rights to its accused students, Silverglate pointed out. "Columbia," he said, "because it is a private institution, feels perfectly free to ignore all standards of fairness, accurate truth-finding, and ordinary decency, simply because its lawyers tell them that they might be able to get away with it legally. Obviously they have completely ignored the moral obligation of a liberal arts institution to adhere to civilized norms."
George Rupp, Columbia's president, recently told the university's trustees that he would leave the presidency on July 1, 2002. "FIRE welcomes his departure," said Silverglate: "George Rupp, who vigorously supported adoption of the Sexual Misconduct Policy, has allowed Columbia University to become a symbol of injustice. FIRE hopes that Columbia's trustees, in selecting a replacement for Rupp, seek a candidate devoted to humane values of fairness and decency. Better yet, the trustees might exercise their fiduciary responsibility to pass along a free university in a free society to future generations by simply abolishing the Sexual Misconduct Policy before a new Columbia president takes office."
The day before the ACLU event at Columbia, FIRE posters and flyers offering legal assistance to Columbia students accused under the policy were torn down and destroyed from several campus locations. That evening, according to reliable eyewitnesses, Sarah Richardson and Kaya Tretjak, co-chairs of SAFER, visited at least one campus location (the Broadway Residence Hall) and tore down FIRE posters. Additionally, according to those witnesses, they destroyed flyers advertising the ACLU event.
As reported by Jaime Sneider, Columbia undergraduate and student journalist, eyewitnesses observed the very students invited to participate in a debate tearing down the posters. Silverglate noted: "It appears not only that SAFER is interested in preventing the accused from securing adequate procedural rights to ensure a fair and accurate outcome, but that its leaders also want to prevent people from attending a public event to discuss this issue of vital importance to the community."
Last year, Richardson said: "Why are we so concerned about the rapist?" in response to a reporter expressing concern for the rights of individuals presumed innocent until proven guilty. In an Orwellian twist, Richardson, in the face of mounting criticism arising from FIRE's campaign for fairness and decency at Columbia, wrote an editorial in the Columbia Daily Spectator on February 28 calling for "further reform" of the Sexual Misconduct Policy. Richardson wrote: "Whether a student is charged with sexual misconduct, physical assault, cheating, stealing lounge chairs, or smoking up in her room, she should have certain rights that guarantee the fairness of the procedure." She issued a call for "across the board" reform.
Despite the harm already done to SAFER's credibility by its active promotion of injustice, even Richardson's U-turn came with conditions. Richardson, citing FIRE by name, warned that reform would fail if outsiders became involved. Noting that Southern sheriffs used to speak of "outside agitators" in the 1950s and 1960s, Silverglate observed: "We are delighted that fairness now matters to these students, and we intend to stay the course until the only remaining supporter of the policy, namely the Columbia administration, changes course and ensures fundamental fairness in its disciplinary proceedings."
The Foundation for Individual Rights in Education is a nonprofit educational foundation. FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, the rights of conscience, and religious liberty on our campuses. FIRE's website, www.thefire.org, provides documentation of and links to the Columbia Sexual Misconduct Disciplinary Policy and explains FIRE's views of the assault on liberty and dignity in higher education.
Harvey A. Silverglate, FIRE:
(617) 523-5933; email: firstname.lastname@example.org
Thor L. Halvorssen, FIRE:
(215) 717-3473; email: email@example.com
George Rupp, President of Columbia University:
(212) 854-2825; email: firstname.lastname@example.org
Kaya Tretjak, SAFER:
(212) 853-8803; email: email@example.com
Sarah Richardson, SAFER:
(212) 853-8726; email: firstname.lastname@example.org
Karl Ward, Columbia ACLU:
(212) 853-5028; email: email@example.com
David Annicchiarico, Columbia ACLU:
(212) 853-3728 email: firstname.lastname@example.org