Since the beginning of the Fall 2000 academic year, a precedent-setting
Sexual Misconduct Policy has been in place at Columbia University, one
of the nation's most prominent universities. The Policy is a new maneuver
in the politically correct gender crusade that has swept academia in the
last two decades. For example, it establishes Columbia as the only American
university with a full-time officer responsible for disciplinary issues
surrounding sexual misconduct. It also sounds the death knell for due process
on Columbia's campus -- at least, for male students. Again, the victimization
of men is occurring under the banner of protecting women from violence.
According to Columbia's "Office of Sexual Misconduct Prevention and
Education," the University's new policy defines sexual misconduct as nonconsensual,
intentional physical contact with a person's genitals, buttocks, and/or
breasts. Lack of consent may be inferred from the use of force, coercion,
physical intimidation, or advantage gained by the victim's mental and/or
physical impairment or incapacity, of which the perpetrator was, or should
have been, aware." [Emphasis added.] On the surface, this definition does
not seem unreasonable although the wording "should have been aware" opens
up the possibility of dangerously subjective interpretation.
Why, then, has a backlash of protest steadily grown around the new policy?
Critics point straight to the procedures prescribed by the University to
deal with alleged sexual misconduct, procedures that constitute an utter
suspension of due process for the accused. For example, the hearings do
not allow a "defendant" to face his accuser or cross-examine witnesses.
Indeed, it is not clear whether he is allowed to even hear the testimony
of witnesses: the Policy states, "the student does not necessarily have
the right to be present to hear other witnesses." Nor is the defendant
allowed to have an attorney present during the proceeding. With a maximum
of ten days notice and little information as to the specific charges, the
defendant is expected to prepare a defense upon which his academic career
might hinge.
Oddly, at the time it passed, the new Policy generated little protest
among the faculty at Columbia. Law Professor Gerard Lynch was one of the
very few professors to speak out against the measure, strongly voicing
his concern about the suspension of due process. Meanwhile, Columbia President
George Rupp has enthusiastically endorsed the Policy. Perhaps the extraordinary
pressure brought to bear by politically correct student groups such as
Students Active for Ending Rape
(SAFER) intimidated those who would have
dissented. Students presented the
Administration with a petition boasting thousands of signatures and conducted
what a SAFER Press Release (2/25/2000) described as "a grassroots student
movement unmatched in recent history at Columbia University." SAFER declared
that the Policy's passage was "a direct result of massive student pressure."
(Interestingly, this is one of the few points of criticism that the
University denies. A letter from Alan J. Stone -- a spokesman for Columbia
President George Rupp -- stated in response to this point, "One of the
primary assertions in the Wall Street Journal and in related opinion pieces
is that 'campus activists' drove the process." Stone explained that the
sexual misconduct policy adopted in 1995 had a sunset clause that called
for a re-evaluation and possible revision of the policy in five years time.
Stone addresses timing, however, and goes onto acknowledge the input of
student groups.)
It was not until the Foundation for Individual Rights in Education (FIRE)
exposed the new Policy that national attention
was drawn to the measure. FIRE -- a nonprofit organization dedicated to
intellectual liberty on U.S. campuses -- may have learned of the Policy
almost by accident. Harvey A. Silverglate, co-founder of the organization,
has a daughter who is a senior at the University. Accident or not, FIRE
has launched a full assault on the Policy that it considers to be "perhaps
the most flawed and unfair...at any university in America."
In a letter dated August 1st to Columbia University's Board of Trustees,
FIRE painted a scenario that involved a student nearing graduation who
is accused of having committed "date rape" in his freshman year. (Under
the Policy, complainants have five years from the date of the alleged incident
to file a complaint.) The accused student would be denied every basic right
of due process that is guaranteed by the Constitution. Moreover, a gag
order would be imposed that would make it impossible for him to conduct
an independent investigation or even to name his accusers to an attorney
he consulted. The Policy states, "Breaches of the confidentiality of the
proceedings...will constitute separate violations of the Sexual Misconduct
Policy."
After the hearing has been conducted in secrecy, the adjudicating panel
-- consisting of two deans and a student, all specially trained in sensitivity
to sexual misconduct -- pass judgment. The accused could be expelled and
denied a diploma, thus negating years of his life and perhaps ruining his
career. The latter comment is not an exaggeration. For example, and at
its discretion, Columbia could tag all documents and transcripts relating
to the defendant with a notation indicating "criminal misconduct." Those
mislabeled would have difficulty in bringing a libel or malicious prosecution
suit against the University due to the confidentiality rule by which information
such as the identity of witnesses might be withheld.
The draconian treatment of those accused of sexual misconduct was justified
on the grounds of protecting women from violence. Specifically, SAFER and
a few other "anti-violence" groups wanted to streamline the process by
which defendants in such cases were brought to "trial." To dramatize their
objections to what they called "red tape bureaucracy" that hindered prosecution,
SAFER orchestrated an ongoing protest by which students put strips of red
tape on books, backpacks, clothing, and around their wrists. Some of the
complaints may well be legitimate. SAFER Co-Coordinator Sarah Richardson
stated of past sexual misconduct cases, "We have a lot of stories about
people going to the deans and getting a slap on the wrist, when the punishment
they're supposed to get is suspension or expulsion."
Student groups also contended that the rate of rape on Columbia's campus
was being intentionally underreported by the Administration in order to
make the university "look good in U.S. News and World Report. (The Report
ranks American universities with crime rates being one of the factors considered.)
SAFER pointed to St. Luke's Roosevelt Hospital, which is rumored to deal
with three to eight cases of rapes from Columbia each month. St. Luke's
did not confirm that rumor, however, and others at Columbia such as Maura
Bairley, program coordinator for the Rape Crisis Center, believe that the
underreporting is simply part of a national trend and not due to corruption
in the Administration. Nevertheless, with Take Back the Night marches and
similarly shrill tactics, SAFER was able to title its Press Release "Students
Force Columbia University to Pass Precedent-Setting Sexual Misconduct Policy."
In the face of criticism from FIRE and voices such as the Wall Street
Journal, Columbia's Administration has vigorously defended its Policy.
Concerning the suspension of due process, J.J. Haywood, the interim program
coordinator for the Office of Sexual Misconduct and Prevention has maintained
that the hearing is merely a "fact-finding, informal, educational procedure."
The Policy concurs and states, "The hearing is not an adversarial courtroom-type
proceeding." This description is repeated verbatim in Exhibit A of the
Report issued by the Task Force on June 19th. Nevertheless, on the basis
of these hearings, Columbia can place a student on "probation, suspension
or dismissal, and may include a prescribed educational program" such as
gender sensitivity training. At a meeting to vote on the measure, Astronomy
Professor James Applegate rejected the idea that a hearing with such punitive
power could be "non-adversarial," especially when adjudicating accusations
of rape.
Columbia's Administration also points out that the University is a private
institution and the courts have upheld its right to determine which procedures
are appropriate to serve its needs. In short, students have no right to
expect Constitutional protections from university procedures. Private or
not, it is the government, which means the taxpayer, who will foot much
of the bill for Columbia's experiment with gender justice. As part of their
Report, the Task Force mentioned that grant funding to finance a full-time
officer responsible for disciplining sexual misconduct was available from
the Department of Justice. The on-campus gender crusader is estimated to
cost $125,000 of taxpayer money in the first year. Yet, according to Patricia
Catapano, who chaired the Task Force, "The courts only have said that Columbia...has
to have fundamental fairness" because it is a private institution.
In response, FIRE has called the Policy both "unfair and inaccessible,"
going so far in its rhetoric to compare the proceedings to "a court in
Nazi Germany." FIRE declared, "As a moral concept...due process protections
are essentially the fundamental principles of fairness, principles that
every college and university -- public or private -- should apply to its
own actions, whether or not they are required to do so by law." No one
is denying the right of Columbia to enforce its private policies, though
the issue of having those policies supported by tax dollars introduces
a distinct grayness into the situation. Instead, critics are bringing the
force of moral suasion to bear on Columbia by casting a cold light of publicity
on procedures that deny basic standards of decency to male students accused
of sexual misconduct.
Apart from the denial of due process, critics raise other disturbing
issues, including,
1. Columbia is an educational institution. As such, it oversteps its
authority by adjudicating criminal matters such as rape and sexual assault.
Just as it would not prosecute cases of murder, it should not hold hearings
on other criminal misconduct but, rather, restrict itself to determining
"guilt" in less serious cases.
2. Columbia may punish those found guilty of a criminal offense, but
it is not only outside their purview to determine criminal guilt, it is
also outside their ability. For example, the university does not maintain
a crime lab to analyze the evidence upon which a judgment of rape often
hinges. Only the judicial system can properly adjudicate criminal guilt.
Only afterward should the university consider imposing additional penalties
on those found guilty.
3. The complainant is free to pursue redress through the courts and
the University will delay hearings until the court process is completed.
However, the Report of the Task Force states that the verdict of the court
"shall in no way limit the powers of any Dean to take any summary action
with respect to the matter that he or she deems appropriate." Even if the
accused is found not guilty of rape or has the charge is dismissed as frivolous;
the University may proceed with a hearing and find him guilty. The University's
posture invites accusations that could not be supported by a balanced examination
of evidence and witnesses.
Although advocates of the Policy might sincerely believe that they are
protecting victimized women, Columbia's hearing will not produce this result.
Jaime Sneider, a sophomore of Columbia College, wrote in the Columbia Daily
Spectator (December 2, 1999), "If our legal system is as flawed as proponents
of this new sexual misconduct policy would have us believe, then the problem
can't be corrected by instituting a new sexual misconduct policy...Injustice
will proliferate by establishing a University court that avoids the checks
and balances of civil liberties..." Advocates contend that victims of sexual
violence are uncomfortable sitting in the same court room as perpetrators
and must be shielded from the emotional trauma. This attitude is an outright
denial of a woman's competence to operate as an adult within society and
its institutions. It treats women as infants who cannot function on the
same level as men.
The Sexual Misconduct Policy comes on the heels of another harassment
scandal that hit the Columbia campus earlier this year. The legal scholar
George P. Fletcher was accused of creating a hostile gender environment
for women when he asked a question on a criminal law exam. It concerned
an actual case in which an anti-fertility zealot destroyed the fetus of
a pregnant woman who later expressed gratitude to the man for doing so.
Law School Dean David Leebron informed Fletcher that the question might
be "unlawful" to ask. FIRE and the American Civil Liberties Union (ACLU)
have addressed what they call "a terrible assault against academic freedom."
Nadine Strossen, President of the ACLU and a law professor, stated, "At
stake in this situation are not only free speech and academic freedom,
but also women's dignity and equality."
A difficult struggle for due process and gender sanity on American campuses
lies ahead. Advocates of the new Sexual Misconduct Policy seem determined
to have it set a precedent for universities across the nation. In a SAFER
Press Release (2/25/2000), Co-Coordinator Nikki declared, "We believe this
new policy will have national impact as other schools look to it to model
their own Sexual Misconduct Policy." An inter-collegiate conference is
being planned to "discuss campus sexual misconduct policies and strategies
for reform." As SAFER states in an "Agenda" published on its website, "Many
other schools are trying to improve their policies and we are in a great
position to help them."
It is to be devoutly hoped that the course of Sexual Misconduct Policies
within academia does not parallel the spread of sexual harassment policies.
One of the first definitions of academic sexual harassment -- and still
a touchstone -- was formed by researcher F.J. Tilly and published in a
1980 Report of the National Advisory Council of Women's Educational Programs.
According to Tilly's incredibly inclusive and vague definition, sexual
harassment in academia was "the use of authority to emphasize the sexuality
of sexual identity of a student in a manner which prevents or impairs the
student's full enjoyment of educational benefits, climate, opportunities."
Universities across the nation scrambled to adopt this new form of gender
correctness. Less than a decade later, in September 1989, Harvard University
issued a guideline that pushed the definition of sexual harassment farther
by removing any connection between behavior and intent. In the section,
"Sexism in the Classroom," the Harvard guideline cautioned against innocent
remarks. "Alienating messages may be subtle and even unintentional," the
guideline observed, "but they nevertheless tend to compromise the learning
experience of both sexes...For example...calling only upon women in a class
on topics such as marriage and the family."
The rapid spread of sexual harassment policies has ruined the careers
of good professors, disadvantaged male students, lowered the quality of
an academic education and silenced free speech on American campuses. And
it has done so with little opposition from intimidated faculties. Sexual
misconduct policies may wreak the same havoc on the principle of due process
and fairness in university proceedings.
There is reason to believe that the political correctness juggernaut
is being halted. A Press Release (10/26/2000) from Curt Levey of the Center
for Individual Rights announced that the University of Oklahoma had agreed
to review it sexual harassment policy "to prevent violations of the First
Amendment." The University's agreement was part of a settlement it reached
with Professor David Deming who was threatened with harassment proceedings
for a letter he wrote to the campus newspaper.
Thor L. Halvorssen and FIRE are important factors in continuing to turn
the PC tables around. Halvorseen has vowed to wage an unwavering campaign
against Columbia's new Sexual Misconduct Policy. The daily student newspaper
"Columbia Spectator" <http://www.columbiaspectator.com/> quoted him
as saying, "If the trustees don't listen, we are going to take this to
the alumni. And if the alumni doesn't listen, we will go to the parents.
Do not rule out mass mailings to the parents by FIRE." Hopefully parents
will care as much for the well being of their sons as they do for that
of their daughters.
