Outside Groups Attack New Misconduct Policy

The Wall Street Journal and a nonprofit foundation concerned with civil liberties in academia laid siege to Columbia's new Sexual Misconduct Policy yesterday, calling it unfair and a violation of due process rights.

The Foundation for Individual Rights in Education (FIRE), using harsh words at times, accused the University of creating and implementing a policy "that lacks even the most minimal safeguards and fundamental principles of fairness."

FIRE's public outcry came on the same day that a Wall Street Journal staff editorial accused the student groups that helped craft the policy of "want[ing] to put an end to … such precepts as the right to confront one's accuser, to confront and examine witnesses, to have an attorney present--the basic principles of due process."

In response, the administrators and students involved with the policy claimed it not only had elements of due process but that it was "fundamentally fair." And in a letter to the editor of the Journal, Columbia criticized the newspaper for not contacting the University and pointed out that the policy is under "ongoing oversight."

While several professors questioned whether the policy granted due process to the accused in February when the University Senate passed the policy, the attack from FIRE held a new ferocity. Comparing the procedure through which the accused must go to the witchcraft trials and the People's Court of Nazi Germany, FIRE pledged to do anything in their power to revoke the policy.

"There is no compromise," said FIRE Executive Director Thor Halvorssen. "If the trustees don't listen, we are going to take this to the alumni. And if the alumni don't listen, we will go to the parents. Do not rule out mass mailings to the parents by FIRE."

FIRE is a two-year old nonprofit that is devoted to freedom of speech, religion, thought, and due process on campuses, according to its website.

In an Aug. 1 letter to the Columbia's trustees, FIRE said the new policy refused the "right to timely notice, the right to prepare a defense, the right to confront one's accuser and to cross-examine witnesses, the right to an attorney, and the right to an impartial hearing."

Under the policy, which is being implemented this semester, the complainants have five years from the time of the incident to report it. The Task Force that wrote the policy felt that six months, the time that the old policy allowed for the complainant to come forward, was not long enough.

Students are not allowed to have attorneys present because of the fundamental belief that the proceedings, as J.J. Haywood, interim program coordinator for the Office of Sexual Misconduct and Prevention says, are "fact-finding, informal, educational procedures."

The new policy also does not allow the cross-examination of witnesses in order to make the complainant more comfortable in the proceedings.

Students Active for Ending Rape (SAFER), a student group instrumental in the language of the policy, released a statement yesterday in response to the accusation. The group defended the policy, saying that "A student charged with a violation of the new [policy] is entitled to notice of the specific charges, an opportunity to be heard, present evidence and witnesses, and an opportunity to appeal a disciplinary decision to the dean of his or her School."

But because "due process" is a legal term, by which Columbia does not necessarily need to abide because it is a private institution, FIRE also argues against the policy on moral grounds.

"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," FIRE wrote.

Patricia Catapano, associate general council and chair of the task force that wrote the policy, felt that the policy satisfies legal and moral obligations and has "a basis of due process standards."

Catapano added that FIRE has a problem with that definition of due process "because it is their belief that criminal due process protections ought to be allowed. But the courts have held that it is up to private universities to make their own decisions about what is an appropriate procedure… The courts only have said that Columbia only has to have fundamental fairness."

In its statement, SAFER affirmed the policy's fairness.

"The new policy … establishes a groundbreaking disciplinary procedure that provides a fair hearing while remaining accessible to the campus community, a just and much-needed alternative to commonly used, closed-door disciplinary procedures, such as Dean's Discipline, which operate with little due process, oversight, or accountability," SAFER wrote.

The group was the unnamed subject of the Journal's editorial, which said that the policy "mirrors an ominously increasing tendency to devalue due process in the interest of a select category of entitled victims."

SAFER shot back at the Journal in its statement. "While waving around blatantly false assertions attributed to reformers of the old policy, not a single one of whom was contacted for an alternative perspective, supplemented by calculated omissions and half-truths, The Wall Street Journal clings to a failed notion of dealing with campus sexual assault rather than embracing a movement for fair, accessible university sexual assault policies."

But FIRE President and co-founder Alan Kors, a professor of History at the University of Pennsylvania, said that the revised policy is both unfair and inaccessible.

"The goal of any hearing that … is a fair process is one under which you would be willing to be tried, because it gets to the truth," he said last night. "This policy fails completely in that regard."

Kors' words against the policy became increasingly harsh. He said that, considering the possible severity of the crimes brought against the accused, the policy was remarkably void of due process.

"What Columbia has said is, the more serious the charges, the more we want to get rid of red tape," he said referring to SAFER's claim that the "red tape" of the old policy prevented victims of sexual assault from coming forward.

He then compared the proceedings to American trials against witchcraft and a court in Nazi Germany, saying that the policy "doesn't even care if [it] sweeps up the innocent in getting the guilty… It's a witchhunt. And to get at the devil, you must tear down all the trees of protection. Columbia is chopping down all the trees of … decency in all proceedings."

Haywood defended the procedure, citing the education that deans who decide the cases must receive. "This is a fundamentally fair process," she said last night. "It provides a fair, unbiased hearing."

In the end, however, any Columbia defense of its policy may have no effect. "There's no question that [Columbia has] to change this," Halvorssen said. "This is not going to go away."

Additional reporting done by Associate News Editor Ben Casselman