AT MANY COLLEGES,
PENDULUM IS SWINGING IN SEXUAL HARASSMENT CASES
By Patrick Healy of The Boston Globe The Chicago Tribune
November 23, 2000
NEW YORK -- If a history is ever written of this fall's fiercest campus culture war--over sexual misconduct and students' rights at Columbia University--it would surely begin with the moment that Sarah Richardson lost her faith in justice.
In 1999, her freshman year, she said two men in her dorm crossed a line and began hounding her to the point that she filed a complaint of sexual harassment and physical assault.
It was then, she said, "the process became far more painful."
The dean handling her case, Richardson recalls, showed no sympathy. She and her friends were told to e-mail their side of the story. She never made her full case, and in the end, the men were put on probation. "Which means nothing," she said.
Richardson formed a coalition to fight for a new sexual misconduct policy focused on aiding victims. Using red tape as their symbol, they charged that the Columbia University bureaucracy had stifled complaints so much that only two were heard between 1995 and last winter.
Chastened, Columbia enacted a new system this fall. And with it, the pendulum swung.
If Richardson once felt slighted and helpless, students who are accused may soon feel the same way, if not worse.
The Columbia policy is seen by some students and civil libertarians as an extraordinary step toward injustice. According to Boston University Chancellor John Silber, the system has elements lifted from a Franz Kafka novel:
No lawyers are allowed. There is no right to face the accuser or listen to witnesses. Complaints can be filed up to five years after the alleged incident. There is no right to cross-examination and no recorded transcript of what was said of the detailed arguments or of the nuances that might influence the jury.
"How do you defend yourself?" said Thor Halvorssen, executive director of the Foundation for Individual Rights in Education, a new civil liberties group that is stirring much of the opposition to the Columbia policy. "When your life, your academic career, and your reputation are at stake, that's adversarial."
With a recent court decision affirming the right of Brandeis University--and by extension, other private colleges--to conduct discipline hearings as it sees fit, Columbia's new system reflects the choices campuses face: how much traditional due process to offer both sides, how to ensure fairness, and how far to turn an exercise of justice into a learning experience.
To the rights foundation, the policy represents a new opportunity to attack campus judiciaries, which they see as politically correct star chambers that police sexual relations between men and women.
Members of the group hope to shame Columbia, or fuel legal action, to kill the policy; for example, they have trumpeted New York University's refusal to adopt a similar system. An NYU official told a campus newspaper that it was a "fundamental right for an accused person to face his or her accuser."
Columbia officials say the university's policy is fair and will be reviewed regularly. The lack of courtroom-style due process is common in campus judiciaries, they noted, to avoid treating students like criminal plaintiffs and defendants.
"Discipline at the university is regarded as something that is educational as opposed to punitive," said Patricia Catapano, an associate general counsel at Columbia and one of the authors of the new policy. "Rarely does a university consider that a student cannot be rehabilitated."
But to students like Karl Ward, Columbia is teaching a biased lesson.
Ward, who with the rights foundation's help has started a Civil Liberties Task Force to change the policy, said disciplinary hearings are no longer an impartial, balanced forum for complaints. Rather, he argued, Columbia tainted the process by putting it in the hands of a new Office of Sexual Misconduct Prevention and Education. Activists such as Richardson pressed the office to assist students who have complaints, and train campus officials to run the judicial hearings.
The office, in Columbia's student center, is still a work in progress. Charlene Allen, formerly executive director of the Boston Area Rape Crisis Center, started work last month as its first full-time coordinator, and is slightly bemused by the criticism of her new office.
One of Allen's duties is to train people to judge complaints under the new system; two administrators and one student will typically handle each case. In these training sessions, Allen suggests ways to interview, question, and listen as they assess whether the evidence is "clear and convincing," or insufficient to support the complaint.
She said the absence of lawyers, and the separation of the accused and accuser, helps root the proceedings in an educational and unintimidating setting.
"We do bend over to provide protections to students but they're not courtroom protections," Allen said. "This is a different animal."
Edward N. Stoner II, a lawyer who is a specialist in discipline policy, said campuses nationwide have been grappling with how to create an "educational" judicial system in which students feel more like they're in an informational interview than a scene from the television drama "Law and Order."
He said many campuses make audiotape recordings of hearings, which he recommends, and allow students to face their accusers in some form.
"Most places say if it's a student-on-student incident, of course we should have students there to hear what they're saying about what happened," Stoner said.
In the end, he said, Columbia is free to do as it wants: Constitutional due process may be guaranteed in the courts, but campus due process may be designed to meet the school's goals.
Harvey Silverglate, a Boston lawyer and a leader of the rights foundation, said his group challenged Columbia out of concern that colleges' limits on constitutional due process may someday spread to society at large.
"What begins as a trend on campus ends up being generalized in greater society in a generation or so," Silverglate said.
This assault on Columbia's policy troubles some students here. Richardson wonders who can dispute that Columbia needed to do more to police sexual misconduct? In recent years, the university received only a handful of complaints, and its crime reports to the federal government indicated that barely any sexual assaults occurred at Columbia.
Richardson belongs to a campus group called Students Active for Ending Rape, and she said area hospitals have reported dozens of cases of Columbia women seeking treatment for assaults in recent years.
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