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 on which his academic career might hinge.
A University Senate Task Force on Sexual Misconduct—consisting of deans, professors and students—was established to write the new policy. Oddly, at the time it passed, the 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 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 President 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. But Stone acknowledged the input of student groups.)
It was not until the Foundation for Individual Rights in Education (FIRE—www.thefire.org) exposed the new policy that national attention was drawn to the measure. FIRE—a nonprofit organization dedicated to intellectual liberty on American campuses—may have learned of the policy almost by accident. Cofounder Harvey A. Silverglate has a son who is a senior at Columbia. 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 1, 2000, to Columbia’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. (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 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: 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 owing 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. In the past, officials at Columbia University have been bitterly accused of obstructing women who attempt to bring charges of rape or similar abuse against male students. Some of the complaints may well be legitimate. 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.
Student groups also contended that the rate of rape on Columbia’s campus was being intentionally underreported by the administration to make the university “look good in U.S. News and World Report,” which considers crime rates in its ranking of American universities. 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 because of 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 19. 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, that 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.
The Force of Moral Suasion
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. Critics rather 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 these:
- 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.
- Columbia may punish those found guilty of a criminal offense, but it is not only outside its purview to determine criminal guilt, it is also outside its ability. For example, the university does not maintain a crime lab to analyze the evidence on 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.
- Complainants are 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 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 at 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 last 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, 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 intercollegiate conference is being planned to “discuss campus sexual misconduct policies and strategies for reform.” As SAFER states in an “Agenda” published on its Web site, “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 formulated 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 is “the use of authority to emphasize the sexuality or sexual identity of a student in a manner which prevents or impairs the student’s full enjoyment of educational benefits, climate, or 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 last fall from Curt Levey of the Center for Individual Rights announced that the University of Oklahoma had agreed to review its 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 had been threatened with harassment proceedings for a letter he wrote to the campus newspaper.
FIRE executive director Thor L. Halvorssen and his organization are important factors in continuing to turn the PC tables around. Halvorssen has vowed to wage an unwavering campaign against Columbia’s new Sexual Misconduct Policy. The Columbia Spectator (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.