Cornell University graduate Mike Wacker has an excellent column in today’s Cornell Sun on the debate at Cornell over complying with the Department of Education’s April 4, 2011, “Dear Colleague” letter (DCL). As FIRE has pointed out, the DCL strips important due process protections from students accused of sexual harassment or sexual assault. Wacker hits on many of the problems that Cornell students and faculty members are having with the idea that campus trials for these serious offenses will now be far less thorough and reliable than those for, say, vandalism.
The entire column is a must-read. After summarizing the proposed changes necessary to bring Cornell’s Campus Code of Conduct into compliance with the mandates announced by OCR in the DCL, Wacker writes:
Advocates of these changes, including the Women’s Resource Center, hope to create a system friendlier to sexual assault victims and more likely to bring the guilty to justice, which by itself is certainly an admirable goal.
However, before anyone signs off on these changes, one critical question must be asked: How many innocent people must suffer to ensure that the guilty are brought to justice?
While the intentions behind these proposed changes are admirable, the basis for these changes is fundamentally and irrecoverably flawed. It seemingly assumes that the accuser is the victim. But if that were true, why would we even need any sort of trial in the first place? These measures would make complete sense in a counseling session provided by the Women’s Resource Center, but they make no sense in a trial incorporating changes advocated by the Women’s Resource Center.
At times, one wonders if those proposing the changes have even considered the possibility that the accused may in fact be innocent. For example, while banning cross-examination and lawyers may create a friendlier environment for an accuser who is also a sexual assault victim, if the accused is innocent, how will he or she have any hope of exposing the holes in the accuser’s story without a cross-examination or a lawyer trained to find these holes.
Those who oppose these changes do not oppose victims’ rights, they merely recognize that in the case of a false conviction, it is the accused, not the accuser, who is the real victim.
At the end, Wacker asks an important question that’s often overlooked:
Nonetheless, deputy University counsel Nelson Roth has stood his ground, advocating the legal necessity of these changes. From a risk management and legal liability point of view, he may be right. But when fundamental rights are at stake, should there not be more important concerns than legal liability? Is Cornell a university or just a mere corporation?
Call FIRE old-fashioned, but we still cling to the idea that colleges and universities are supposed to have a mission that is materially different from a normal business corporation.
A business corporation’s fundamental imperative is simply to make money, usually while creating as little controversy as possible. In contrast, universities are supposed to be marketplaces of ideas that do not punish dissent and that take the interests of their students and faculty into account when making decisions about how to treat them. After all, particularly for students, a university is more like the town in which they live than a corporate office.
So, believe it or not, sometimes doing right by students and faculty requires making decisions that are not necessarily the least risky decision possible. This might mean allowing students to advocate unpopular ideas, refusing to censor their controversial performances, and standing up for the due process rights of a student accused of a heinous crime like sexual assault. And when it’s gotten to the point that a law professor is publicly telling the student newspaper that “there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian” (emphasis added), maybe it’s time to ditch the risk-management-uber-alles mentality and start acting like a university again.
Robert L. Shibley is FIRE’s Senior Vice President, is a native of Toledo, Ohio, and a graduate of Duke University and Duke University School of Law.
Used with the permission of The Foundation for Individual Rights in Education.