University Senate Proposed: March 31, 2006
MEETING OF FEBRUARY 24, 2006
President Lee Bollinger called the Senate to order shortly before 1:30 pm in 107 Jerome Greene Hall. Forty-six of 95 senators were present during the meeting.
Minutes and agenda: The minutes of February 3 and the agenda were adopted as proposed.
The President’s Report, the Executive Committee chairman’s report, and the Report of the Education Committee chair, Sen. Letty Moss-Salentijn (Ten., SDOS), on provisional guidelines for distance learning programs, were not successfully recorded.
--Resolution to Establish an Executive Master of Science in Biomedical Informatics (Education). Sen. Moss-Salentijn said the proposed program followed what she considered the best approach to distance learning—a “blended” model, mixing off-campus and on-campus components—and had won the support of the Education Committee.
By voice vote and without dissent, the Senate approved the program.
--Resolution to Establish a Dual Master of Public Affairs (M.P.A.) Degree Linking SIPA and the Institut d’Edudes Politiques de Paris [Sciences Po]: Sen. Salentijn said the proposal closely resembled a dual Master of International Affairs linking the same two schools that the Senate had approved in 2004. Students will spend a year at each school and receive two degrees.
The Senate approved the program without dissent, by voice vote.
--Resolutions on sexual misconduct policy:
Sen. Duby summarized Executive Committee deliberations about how to present the recommendations of the Task Force on Sexual Misconduct Policy to the Senate. After considering a single resolution to adopt all of the task force’s recommendations, the committee decided to offer four resolutions, as follows:
--Resolution of Appreciation for the Work of the Task Force on Sexual Misconduct (Executive Committee, with the task force report).
--Resolution to Adopt a New Policy Statement Against Sexual Assault (Executive Committee, with the revised statement). Sen. Duby said three proposed amendments to this resolution had been distributed electronically before the meeting.
--Resolution to Establish a Presidential Advisory Council on Sexual Assault (Executive Committee). Sen. Duby said two late amendments had been distributed at the door.
--Resolution to Revise Disciplinary Procedures for Charges of Student Sexual Misconduct (Executive Committee, with the revised procedures). Four amendments had been circulated before the meeting.
Sen. Duby took up the resolution of appreciation first. He noted that the Senate has now reviewed sexual misconduct policy three times, and it has become more difficult each time to recruit task force members. He expressed particular gratitude to Prof. Pat Grieve for having taken on the assignment of chairing the third review task force.
With applause, the Senate unanimously adopted the resolution of appreciation.
Sen. Duby invited nonsenator members of the task force to participate in discussion of the remaining resolutions, adding that other nonsenators would have to seek permission to speak, or to ask senators to present their views. He invited Prof. Grieve to the front of the room to present the task force report.
Sen. Grieve thanked the Senate for the resolution of appreciation. She said the report spoke for itself. She said the new cover letter, dated February 16, addressed comments senators had made about the report after it was first discussed back in September. Previously the Task Force had held town-hall meetings, many committee meetings, and many conversations (both in person and by email) in a process Prof. Grieve considered very consultative. She added that the Task Force was itself a very broad and diverse and opinionated group. She said the final report states the group’s sense of the best way to go forward on many points over which it disagreed, sometimes quite heatedly.
Prof. Grieve invited Sen. Rebecca Baldwin (Stu., Nursing), a task force member, to make a statement. Sen. Baldwin expressed gratitude to senators for their engagement with the issue of sexual assault, as shown in the range of amendments that had been offered. She preferred not to discuss the amendments in detail, but to address the larger issue of the continuing fight against sexual violence.
She said that she herself was a victim of sexual assault 17 years ago, when she was an undergraduate at another university. For 15 years she was unable to tell anyone about it. She had been in an environment where there was no rape crisis center, no office of sexual violence prevention, no special policies to protect her.
Sen. Baldwin said the fact that initiatives like these now exist on many campuses shows the remarkable progress that has been made since she was in college. She said the present meeting was an important milestone in Columbia’s journey, with an opportunity to establish a presidential advisory council on sexual assault that would send a message to the community that Columbia’s commitment to this issue is university wide. She called for entrusting the advisory council with “ownership” of the policy, allowing it to pursue the fight against sexual violence without micromanagement or the perpetual revisions that the Senate has engaged in for the past decade. She said the council must be free to work with the many experts on this campus whose understanding of this issue will enable them to foster a healthy, safe community.
Sen. Baldwin doubted that her assailant remembers her name. and guessed that he is a successful man, probably a husband and father. She said the 17-year interval since the assault, a lifetime to a college freshman, feels to her like two days. Sometimes, in a crowded room. she thinks about the statistical likelihood that there are other survivors in the room. She wondered aloud if there were other silent survivors at the present meeting. She asked senators to remember that at the heart of the issues they were about to vote on are young women and men whose safety, dignity and health are at stake. There was applause.
Discussion of the task force report: Sen. David Bornstein (Stu., GSAS/Hum.) said the task force’s cover letter, on page 5, mentions a recommendation to eliminate a statute of limitations for charges of sexual misconduct, but section 1 of the disciplinary procedures (point 5 on page 22) still says there is a statute of limitations of one year. Which is right?
Prof. Grieve made clear that the Task Force did not want a statute of limitations.
Sen. Bornstein distinguished two time limits: the one-year statute of limitations and the requirement that the student must be enrolled in the Columbia division in which the misconduct took place. He asked if both limits have been eliminated.
Prof. Grieve said the second requirement remains in place. She said the task force could not see how, under dean’s discipline, a dean of a Columbia school other than the one in which an assault took place could require that dean to pursue a complaint.
Sen. Sharyn O’Halloran (Ten., SIPA) recalled that Prof. Grieve had told the Executive Committee that the question of whether to pursue a complaint about an incident of sexual misconduct alleged to have occurred in another Columbia school would be left to the discretion of the dean of the student’s current school.
Prof. Grieve said the task force had meant to leave such decisions to the discretion of the student’s current dean, and she said the recommendations would be revised accordingly.
Sen. Michael Adler (Ten., Bus.) expressed puzzlement at the provision in the disciplinary procedures that the hearing deliberations would be private (point 13, page 27). He thought that the hearings would constitute a body of case law, and that records should be made and published, perhaps with the deletion of names, showing the procedures followed and arguments made. Such a record would provide useful precedents for untrained deans and others.
Sen. Adler added that the policy is dealing with some acts that are criminal offenses. But point 3 (page 23) of the disciplinary procedures says the the hearing is not a “judicial procedure,” and violators of the policy are not subject to “criminal penalties.” He thought the disciplinary procedures should more closely resemble criminal proceedings, especially on the question of legal representation. What the parties need is not a “supporter,” Sen. Adler said, but someone who can actually argue the case. Similarly, the hearing officer must have some training in judging. The closer the university comes to a formal statement of procedures, Sen. Adler concluded, the more careful it has to be to make sure that the procedures stand up in court.
Prof. Grieve suggested that changes of the kind Sen. Adler was suggesting would require not just a few amendments to the present procedures but an overhaul of all campus disciplinary procedures. She did not oppose such an effort, but thought it was a mistake to hang every problem with student discipline on the procedures for adjudicating the sexual misconduct policy.
She said she could not imagine a school signing on to a policy in which the dean must respond to lawyers. She suggested having the General Counsel comment on the general question of legal counsel in campus disciplinary proceedings.
Sen. Adler asked if one result of a hearing might be a determination that the case should be passed on to the court system. Is the university really able to adjudicate a crime like rape?
Task force member Susan Rieger, associate provost for affirmative action and equal opportunity, reported the view of the group that the community has a right to enforce standards and rules for the safety and well being of those who live within it. That’s why Columbia provides a mechanism to hear such cases.
President Bollinger asked for someone to clarify the relationship between internal and criminal proceedings. He said the university clearly has an interest in being able to sanction behavior that does not rise to a criminal level, but violates standards. It also has an interest in providing its own sanctions in addition to those meted out by the criminal justice system.
The relationship between the two proceedings remains important, the president said, because material in an internal proceeding could be used in a criminal prosecution. His own sense was that internal proceedings stop if a criminal proceeding is initiated, precisely because the university does not want internal proceedings to provide the basis for criminal proceedings, and rights may be infringed in the process. He asked Sen. Jeremy Waldron (Ten., Law) to comment.
Sen. Waldron thought it would make no sense for an internal proceeding to pre-empt a criminal prosecution, though prosecutions often proceed only on the basis of what a complainant wants to do. With the caveat that he was not an expert in criminal procedure, he said he saw little danger that anything said in internal proceedings would be admissible in a court of law, because such testimony would violate most of the canons of evidence. He said recent changes to task force recommendations had also addressed some due-process concerns that had come up earlier.
The president raised what he called the difficult question of the university’s responsibility to notify prosecuting authorities of the results of its own proceedings. He understood that the university has an obligation to report criminal behavior that it learns about in its own investigations. Sen. Waldron supposed that such a requirement would apply to felonies, but not to lesser offenses.
Sen. Waldron likened this situation to the obligation of a school to report child abuse. The difference, he said, is that the cases of sexual assault under consideration here involve grownups.
President Bollinger returned to the question of the participation of lawyers in disciplinary proceedings for sexual misconduct. Because significant interests and penalties are at stake, it may make sense to introduce the additional formality and analysis and independent representation that lawyers can provide. But this adds a sense of removal from the actual people involved. A legal approach may also make it more difficult to reach some kind of accommodation that would be better for everybody. In general, the president said, he does not favor including lawyers in the process.
Sen. Daniel Savin offered the point of order that the proceedings were being videotaped. His understanding was that such recording was not customary. He asked if the Senate should vote on this question.
The president determined that CTV, the student-run campus television station, was videotaping the meeting. He asked what the Senate’s policy was on press coverage.
The staff member said the Senate bylaws allow campus media to cover Senate meetings. [“Meetings of the University Senate shall be open to members of the University community, campus press, radio and other campus news media. . . .” (Sec. 1, Organization and Procedure, paragraph c, Meetings].
Sen. Savin said internal media have an audience beyond Columbia.
Sen. Roosevelt Montas (NT, A&S/Hum.) said allowing such coverage would set a precedent, which the Senate should consider. He noted that the Senate had refused permission to outside media to cover some past plenary meetings.
The president understood that it would be impossible to prevent an internal news organization to pass its coverage onto the outside world, just as anyone can find Spectator on the Web. He said that if there were no further comments, the meeting would proceed.
Sen. Bornstein returned to Sen. Waldron’s point about the probable inadmissibility of testimony from a campus proceeding in court. Sen. Bornstein’s own reading suggested that such testimony is admissible, as long as it isn’t coerced. He said the statement in the current policy that a student has a right to remain silent assures that his testimony will not be considered coerced.
He referred to the ruling in a 1978 case in the First Circuit, Gabrilowitz v. Newman, that failure to provide an attorney for consultation and advice in a campus disciplinary proceeding would lead to an infringement of due process for the student defendant if the case were to reach the criminal courts. Sen. Bornstein asked for guidance from a legal expert on criminal procedure.
Sen. Kacy Redd (Stu., GSAS/NS) responded to Prof. Grieve’s earlier point that the sexual misconduct disciplinary proceedings are embedded in dean’s discipline, by saying that these proceedings don’t have to be based on dean’s discipline. She said the very fact of an alternative policy for sexual misconduct is a sign of the inadequacy of dean’s discipline for handling sexual assault allegations.
She said that the Senate has deliberated at length on sexual misconduct policy, which is clearly within its jurisdiction. She said that in another university-wide policy set by the Senate, on rules of conduct governing political rallies and demonstrations, a student defendant in the internal hearing procedure is allowed to have legal counsel if he or she is accused of “serious” violations. In addition, for serious offenses of various kinds that are adjudicated internally at Yale, Princeton, Penn, Cornell, and Brown, students are allowed legal counsel.
Sen. Redd added that providing legal counsel both for complainants and the accused in internal disciplinary proceedings is also recommended by legal experts in the “Tool Kit” for combatting sexual violence prepared by the Department of Justice. Sen. Redd pointed out that an amendment she was co-sponsoring to the disciplinary procedures proposed by the task force did not provide for active legal representation for attorneys in campus disciplinary proceedings (including cross-examination of witnesses), but only unobtrusive support and advice to protect the student’s rights in possible future criminal proceedings.
Prof. Grieve said the current policy in no way prevents the victim or the assailant from having legal counsel. Outside attorneys are just not allowed in the hearing room.
Susan Rieger requested speaking privileges for Maura Bairley, director of the office of sexual violence prevention and response, to address the university’s obligation to report crimes.
Ms. Bairley said it felt inappropriate to proceed with a debate on sexual assault policy without acknowledging Sen. Baldwin’s earlier statement, which she praised as brave and eloquent. She said the university’s obligations are spelled out in the Cleary act and in the Campus Sexual Assault Victim’s Bill of Rights, enacted by the Congress in 1992. Campuses must provide people who report sexual assault with information about how to report to law enforcement and with support if they choose to do so. The choice of whether or not to report to law enforcement clearly belongs to the person reporting the incident. The Cleary Act provides guidance on whether or how the university must report, and says the university must include all crimes reported to campus administrators in its annual report to the federal government. So a dean or RA who hears a report of a sexual crime is not obligated to call 911, but to log that report into a system Columbia has set up.
Sen. Bradley Bloch (Alum.) stessed the need for responsible collection and dissemination of statistics on sexual assault, so that the campus community can see how it’s doing. He said there should be a factual answer to the question Sen. Baldwin had asked rhetorically about the number of victims of sexual violence.
Sen. Bloch noted that the work of the previous sexual misconduct task force had included specific recommendations about statistics and data gathering, but he hadn’t seen any results. He said it was important to rectify this deficiency going forward.
[At this point, the proceedings of a conference elsewhere in the building were accidentally piped into the room, interrupting the Senate meeting for several minutes].
Prof. Grieve said the task force certainly wanted to encourage the collection of statistics, and perhaps should have offered more than general statements on the subject. She asked Ms. Bairley to report more specifically on sexual violence statistics at Columbia.
Ms. Bairley recalled that she had provided the latest data on sexual violence on campus to the Senate in December. They come from the National College Health Assessment instrument, which looked at undergraduate and graduate populations both on Morningside and the medical campus for 2004. She said the statistics offer the unsurprising news that sexual violence occurs about as often on Columbia’s campus as on any other campus:
--3 percent of undergraduates reported verbal threats for sex against their will;
--10 percent of men and women reported sexual touching against their will;
--3 percent reported attempted sexual penetration against their will;
--1.6 percent of men and women reported sexual penetration against their will;
--1.2 percent reported a physically abusive relationship;
--1.3 percent reported a sexually abusive relationship.
She said the NCHA instrument is generally regarded as valid and reliable. She said she considers collecting statistics a less pressing priority than encouraging victims to report.
Ms. Bairley said her office is ready to implement technological improvements in the collection of the data required by the Cleary Act as well as a system that will allow students to file anonymous and confidential reports. But the paramount priority is reducing the barriers to reporting, and assuring support for victims closer to the time that they are sexually assaulted.
Sen. Redd asked how the NCHA statistics were compiled. Ms. Bairley said the data, from the National College Health Assessment, are much more reliable than statistics reported through official campus channels, like Facets.
President Bollinger asked if it was the sense of the task force that the current campus procedures for adjudicating cases of sexual assault are working reasonably well, and that the problems have to do with reporting, education, awareness—cultural issues, which might be more effectively pursued through a presidential advisory committee than through a process of periodic Senate reviews that may be less effective.
Prof. Grieve agreed with this summary. She said the main preoccupation of the task force was the disconnect between the tremendous resources available on this campus and students’ perception of what’s available. She recalled the anecdote she had told at a previous plenary about the role-playing assignments task force members had taken on to see how easy it is to get basic information about the policy. The finding was that the information is often difficult to come by, and perhaps impossible to acquire in a traumatic situation. The focus of the task force was to improve access to these resources.
She said the meaning of the idea of “ownership” of the policy that Sen. Baldwin had mentioned in her statement was to shift the burden of implementing the policy from the highly dedicated offices providing the services and hard-working student groups to the community as a whole.
In response to a question from Sen. Savin, Sen. Redd said her understanding was that at other institutions student participants are allowed to have legal counsel in the actual disciplinary proceedings. Sen. Savin asked why Columbia has not chosen to follow a similar model.
Prof. Grieve said the task force had changed the previous statement in the policy that the supporter or the adviser could not be an attorney. The revised version allows the supporter from the Columbia community who is in the room with the student to be an attorney, to consult with the student, and to write notes. These provisions essentially allow legal counsel in the room, she said, without violating the general model of dean’s discipline.
Sen. Adler said he had expected Prof. Grieve to say that one reason not to allow attorneys is that the University might have to guarantee this service to students who can't afford to pay for it.
Prof. Grieve said the task force had only intended to assure that someone whose favorite professor is a lawyer would not be barred from the hearing room as a supporter.
Sen. Baldwin suggested moving on to consideration of the amendments, which address all of the issues that had come up so far in the discussion. President Bollinger agreed, adding that the meeting was nearing the end of the time he had allocated for it.
--Resolution to Adopt a New Policy Statement Against Sexual Assault:
--The first proposed amendment, Resolution to Recommend a Victim of Sexual Assault Seek Medical Attention, was co-sponsored by Sens. Redd and Bornstein. It called for
adding a sentence to the policy statement urging victims to seek medical attention.
Prof. Grieve said the task force had considered and rejected this idea. She said one reason victims of sexual assault do not report is that they fear that what happened to them somehow wasn’t serious enough. She worried that putting medical attention in the actual policy statement might seem to imply that the policy only covers verifiable rape or other physical violence. The task force had used language intended to show how broad a range of physical nonconsensual activity can constitute sexual assault, she said.
She said information about medical attention is vital for victims of sexual violence, but it belongs not in the policy statement itself but in supporting or clarifying material.
Sen. Robert Meyerhoff (Stu., CC) asked to hear from Ms. Bairley about what her office tells students who call about incidents of sexual assault.
Ms. Bairley agreed with Prof. Grieve that providing information about medical help is vital, but putting it in the policy statement may be offputting. In training sessions for students, her office does not provide a copy of the policy, but materials it has developed that speak specifically to students who may have been sexually assaulted.
Ms. Bairley said her office certainly encourages people to consider getting medical attention, and has become more directive in tone, recommending a visit to a local emergency department with a rape crisis program, like St. Luke's/Roosevelt Hospital, with specially trained providers who are able to collect the forensic evidence, conduct a thorough medical exam, and provide HIV prophylaxis and emergency contraception. Such facilities provide excellent care, she said.
Ms. Bairley said her office also encourages people who may not be comfortable in emergency rooms to seek other kinds of medical services. But she said it is crucial to offer forensic evidence collection, an opportunity that ends after 96 hours.
Sen. Bornstein replied that Lafayette and most of the other schools with sexual assault policies identified as exemplary in the National Institute of Justice "tool kit" for fighting sexual violence include information about medical attention in their policy statements. She argued that a student should not have to wait until she reaches Ms. Bairley's office to find out about medical options. Sen. Redd said a solution to the concern that information about medical attention might be offputting to students who had not been so violently treated could be a simple conditional sentence: If you have been violently assaulted, please seek medical attention.
Sen. Redd added that she gets all of her information on line, and she needs the information where she can find it easily. To put it somewhere else is problematic, she said. She said FACETS urges victims of sexual assault to seek medical attention and notify the NY Police Department. But to find the information in FACETS, you have go to a PDF file and then search it.
Prof. Grieve said a presidential advisory council could work with the relevant offices to solve this problem, which she had already discussed with Sen. Lisa Hogarty, executive vice president for student and administrative affairs. Prof. Grieve said there should be numerous links with specific information about particular problems, but these should be separate from the policy statement. She said Lafayette College has actually distinguished between its policy and its policy statement, a distinction Columbia has blurred. Lafayette's policy statement is one or two lines, saying only, We don’t tolerate this. The clarifying information comes later.
President Bollinger deferred his call for a vote for one more comment.
Sen. Samuel Silverstein (Ten., HS) said discussion so far had referred to medical attention very narrowly, in physical terms, without mentioning the critical psychological component.
He also asked about the statement in the policy that the university encourages students to report these incidents whether or not they choose to file an official complaint. What is the difference between a report and a complaint?
Prof. Grieve said the policy as developed in past Senate deliberations is tied to recourse for students. So the filing of a complaint has had to do with whether a complainant was going to avail herself of one of the disciplinary options.
Sen. Silverstein understood Prof. Grieve to be saying that there was a way to collect data that shields them from any subsequent activity.
The Senate then rejected the amendment by voice vote, after a partial count.
--Sen. Redd presented the second amendment, Resolution to Inform Students of the Right to File Criminal Charges, which she had also co-sponsored with Sen. Bornstein. It called for an additional paragraph in the policy statement, saying that resolution of an internal disciplinary procedure does not prohibit a complainant from filing criminal charges as well, and providing information about how to do pursue such charges. Sen. Redd said she found it problematic that the policy does not acknowledge that sexual assault is a crime, but said she had decided not to use this amendment to rectify that omission, in order to give the amendment a better chance to pass. She added that the Cleary Act mandates that institutions should not impede criminal prosecutions.
Prof. Grieve said she knew of no other policy under dean's discipline that mentions in the policy statement that the misconduct in question is a crime. In Harvard's presentation of its policy on sexual assault, there are clear links to the campus police, whose site offers clear links for filing criminal charges. But the policy statement does not mention that sexual assault can be a crime.
Sen. Montas asked if it is really accurate to say that the disciplinary procedure doesn't prohibit students from pursuing criminal charges, if it's also true that the internal procedure shuts down if the student pursues criminal charges.
Prof. Grieve said the situation Sen. Montas had described is true of dean's discipline in general. Sen. Redd said the two processes are not mutually exclusive; internal procedures are put on hold until the criminal process is resolved.
The president then called for a vote. The Senate defeated the amendment by voice vote, without a complete count, but with one abstention.
--The third amendment proposed for the revised policy statement, Resolution to Inform Students About Their Options If Sexually Assaulted by an Employee of the University, was presented by Sen. Bornstein, a co-sponsor with Sen. Redd. He said the same basic arguments apply as in the previous two amendments. He said the policy begins with a good, strong statement against sexual assault. But a student who has been assaulted not by a student but an employee will have the experience Prof. Grieve had described, of giving up in frustration after trying to find information about how to proceed. To avoid this outcome, the amendment called for a short paragraph at the end of the policy statement telling students which administrators to contact if they have been assaulted by an employee.
Prof. Grieve said that, again, she was unsure whether this information should be included in the policy statement, but agreed with Sen. Bornstein about the importance of the initial statement.
The Senate then passed the amendment by voice vote, without a count.
With this single amendment, the Senate then passed the Resolution to Adopt a New Policy Statement Against Sexual Assault, by voice vote without a count.
--Resolution to Establish a Presidential Advisory Council on Sexual Assault.
To this resolution Sen. Redd offered the first amendment, which she had co-sponsored with Sen. Duby:
--Resolution to Retain Senate Jurisdiction over Changes to the Sexual Assault Policy.
Sen. Bornstein noted that, as written, the resolution to create the advisory council would remove the sexual assault policy from Senate oversight. He said the argument for doing this, articulated by Prof. Grieve and President Bollinger earlier in the meeting, is that there's a continual cycle of review which, as often happens with democratic deliberation, is time-consuming and tedious and it holds up progress. Sen. Bornstein argued that democratic deliberation, and maintaining Senate authority, will only make the policy stronger.
President Bollinger made clear that the presidential advisory council was not his idea. He said he also understood that the Executive Committee, the formal proponent of the resolution to establish the advisory council, had agreed to accept this amendment as friendly. Consequently there was no need for a vote on the amendment. He asked if there was any objection to this decision.
President Bollinger noted the additional provision in the amendment that one member of the advisory council be a member of the Senate Student Affairs Committee.
Sen. Duby affirmed the support of the Executive Committee for the amendment.
Sen. Baldwin moved another amendment, which had been distributed at the door. She was a co-sponsor, with Sen. Holly Snow (Stu., Barnard), but the amendment had been written by other students concerned about sexual assault. Sen. Baldwin said the amendment requires the advisory council to establish mandatory training for all Columbia officers obligated by the Cleary Act to report sexual violence.
Sen. Duby accepted the amendment as friendly on behalf of the Executive Committee.
The Senate then adopted the resolution to create the presidential advisory council as amended, without dissent.
The president then excused himself, and asked Sen. Duby to take over the meeting. He said he had to attend another meeting that was crucial. He thanked the Executive Committee and the Task Force for their work. He emphasized the importance of the sexual assault policy.
Sen. Adler asked if the president was again a candidate for the presidency of Harvard, whose current president, Lawrence Summers, had recently announced his resignation. President Bollinger said that chapter of his life was over. He said he loves being at Columbia and intends to stay. There was applause. The president then left the meeting.
--Resolution to Revise Disciplinary Procedures for Charges of Student Sexual Misconduct.
Sen. Duby said the Senate was being asked to adopt the procedures set forth in the last eight pages of the Task Force report. He asked first for general comments.
Sen. Adler queried the passage on page 19 that said members of the hearing panel will be specially trained in adjudicating sexual assault. Prof. Grieve assured him that such training is a requirement of the alternative disciplinary procedure.
Sen. Silverstein asked why a supporter couldn't be an attorney from outside Columbia. Prof. Grieve said dean's discipline is an internal procedure, for members of the Columbia community.
Sen. Silverstein expressed concern that barring legal representation, particularly over testimony that can be subpoenaed, would prevent both sides from acting in their best interest.
Prof. Grieve repeated that the model of dean's discipline does not include participants from outside the community. She also repeated her earlier suggestion that alternative models of internal discipline are worthy subjects for Senate study.
Prof. Grieve said the hearing panelist is not concerned with what the supporter is whispering to the student. But the goal is not to match the criminal justice system point by point.
Sen. Silverstein worried that the effect of the prohibition on outside attorneys would be to encourage both the complainant and the accused not to participate in a process that may have serious repercussions for them. He said he would be more comfortable with a clearer sense of lawyers’s opinions on this subject.
Sen. Baldwin said Sen. Silverstein could register his concern by voting on an amendment to allow legal representation that would soon be presented.
[At this point there was a brief interruption of the recording to change the tape]
Having received permission to speak, Ms. Melanie Brazzell, a senior in Columbia College, a nonsenator, and a member of Reforming Sexual Assault Policy (RSAP), summarized a statement she had co-written, which had been distributed to senators before the meeting. She underscored Prof. Grieve's point that questions about students' rights should be addressed to all of Columbia's adjudication processes. Singling out sexual assault procedures for the kind of "legalization" implied by some of the amendments now before the Senate seemed to her inappropriate.
Ms. Brazzell said Sen. Redd had raised an important concern about making the rights of students more explicit in the policy. The current practice is to make sure all students who begin this procedure receive a piece of paper that tells them their rights, but this step hasn't been written into the policy. Ms. Brazzell supported adding an explicit provision to that effect.
Ms. Brazzell also noted that the first thing students find when they look up sexual assault on the Columbia Web site is not the disciplinary procedure but help services, with information about where to go and what to do in the event of a sexual assault. The two other main points of access to the policy, the Office of Sexual Violence Prevention and Response and Health Services, also offer extensive information about medical services and adjudication options.
Ms. Brazzell affirmed a distinction between institutional due process and constitutional due process that she said has been upheld in several courts. In two cases identified in the RSAP statement, the ruling was that constitutional due process standards should not be used to judge a college’s compliance with contractual obligations.
Columbia University is not required to assure constitutional rights in its disciplinary
processes, Ms. Brazzell said, but to fulfill its mandate, which is to educate. This is different from the criminal justice model, one of whose primary functions is to punish wrongdoing.
Ms. Brazzell said a larger issue is whether institutional justice should resemble criminal justice. In her own work on sexual violence, there is an emphasis on restorative justice, on adjudication as a moment for restoring the health of a community, and accountability for violence within it. She said the idea that expelling all the rapists will restore campus safety is also mistaken. She said it is known that sexual violence is a socially learned behavior, and she said that an educational institution like Columbia should give students an opportunity to change their behavior by educating themselves.
Ms. Brazzell asked about the impact of "legalizing" the disciplinary process on the movement to end violence on campus. How will survivors react to learning that they can’t proceed without legal counsel by their side, that they are entering a process like the criminal justice system? Ms. Brazzell reminded senators that sexual violence is one of the most underreported crimes, and that only two percent of complaints even make it to court. She cautioned against moving toward a criminal justice system that isn’t adequately serving survivors.
Ms. Brazzell said that appropriating only certain parts of the criminal justice system would not only raise socioeconomic issues, such as who can afford legal legal representation, but would also require importing a whole set of procedures, along with institutions to make sure they all function and balance each other.
She said the concern about subpoenaing testimony was important. She said students entering the disciplinary process are made aware of this possibility. She added that the Office of the General Counsel fights subpoenas, and that such testimony only rarely becomes public. She repeated Sen. Waldron's statement that most evidence from internal disciplinary hearings would not be admissible in court.
Sen. Silverstein said he would likely be guided by Ms. Brazzell's thoughtful remarks, but he remained concerned that the prohibition on legal representation would encourage both parties not to participate. He asked if there was any experience from other institutions to indicate whether legal representation has positive or negative results. Is there any data?
Prof. Grieve was not aware of data on this issue, but underscored Ms. Brazzell's point that the prospect of a judicial proceeding is a primary reason survivors report to the police so rarely. Quite apart from its impact on the assailant, the criminal justice system is highly punitive to the victim, she said, and if the concern is failure to participate, allowing legal representation will scare more people away than it will encourage.
Sen. Redd said an amendment she had co-sponsored to allow outside lawyers to attend disciplinary hearings provides them not with a speaking part in the proceedings, but allows them to offer unobtrusive counsel to either party. Sen. Redd said the lawyer would function much like another supporter, but with expertise about implications for possible future court proceedings, and the ability to protect either party from making damaging statements.
Sen. Bornstein then called for quorum. He said only six faculty senators were still in the room, including Sen. Duby, and Senate deliberations on this important issue were seriously compromised. He noted that the president, the provost, and Law School faculty senators were all gone. He called for adjournment and for making the remaining resolution and amendments the first order of business at the next meeting.
Sen. Duby agreed to Sen. Bornstein’s request, adjourning the meeting at about 3:25 pm.
Tom Mathewson, Senate staff