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Columbia Prohibits Recording Gender-Based Misconduct Hearings Despite Student Objections

Tuesday, November 1, 2016 14:11
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In recent months, students and professors at Columbia University have spoken out against the institution’s prohibition on recording any part of its gender-based misconduct investigation and adjudication processes. Unfortunately for students seeking accountability and accuracy in campus hearings, the Columbia administration has stood its ground.

The prohibition is stated in several Columbia documents. As The College Fix recently noted, the university’s “Guidelines and Requirements for Gender-Based Misconduct Advisors” explicitly forbids “[r]ecording any part of the investigative process,” including “transcribing, or any other method of reproduction that conflicts with the spirit of this directive.” Further, “if a student is found to have acted in concert with the advisor to record proceedings or copy materials,” he or she may receive “additional disciplinary sanctions.” But a similar provision exists also in Columbia’s “Standards & Discipline: Student Conduct and Community Standards” policy, which provides:

Recording any part of the Dean’s Discipline process or unauthorized copying of any documents by any means is prohibited; copying includes but is not limited to: audio recording, streaming, photographing, scanning, transcribing, or any other form that conflicts with the spirit of this directive. Allegations of non-compliance may result in disciplinary action.

It is unclear from the policy at what point taking notes becomes “transcribing.” One could assume that a student who knows his or her educational future is on the line would aim to be as accurate and complete as possible in his or her note-taking. Yet, there is apparently some level of accuracy and completeness that is too much under Columbia’s policy. This provision, therefore, creates two kinds of obstacles to due process. First, it hinders respondents’ ability to defend themselves based on statements made during the investigation or hearing, especially where the specific wording or details are important. Second, it creates another avenue through which a student may be punished without adequate notice of what is actually prohibited.

The Columbia Daily Spectator reported on the issue last week, relaying critics’ concerns that the policy against recording “has allowed University investigators to misconstrue student testimonies” and violates New York’s “Enough is Enough” bill, which grants students the right to “have access to a full and fair record of any [sexual misconduct] hearing.”

Executive Vice President for University Life Suzanne Goldberg defended the policy, writing that it is “not new” and that three factors support the university’s decision to maintain the policy: “1) privacy concerns for students involved with the process; 2) concerns about a chilling effect on the investigation process; and 3) the presence of extensive safeguards to ensure accuracy within the process.”

On the first point, Goldberg argued that recordings could be made public and potentially “presented out of context.” She concedes that the policy “cannot guarantee that the disclosure will not happen.” But even if it could, a ban on recording is not the right way to address this concern. A ban on public distribution of recordings, for example, would achieve the same effect without hindering students’ ability to craft their cases.

On the second point, Goldberg argues that “a recording device often has a chilling effect on the person being interviewed as part of an investigation process.” Columbia’s policy does not appear to allow for the possibility that students may want to record their own testimony, or that of participants in the hearing who may be less likely to be chilled in this way, such as witnesses.

Aside from that, though, a school cannot simply disallow all practices that might discourage reporting. Indeed, any questioning of the complainant—particularly regarding the details of an assault—could be very uncomfortable and could even make that individual less inclined to actively participate in the proceedings. But such questioning is required for a fair hearing and a reliable finding of fact. In this case, an accurate record is an important safeguard for both the complainant and the respondent, especially on appeal, where new adjudicators might be reviewing the case for errors.

On the third point, Goldberg enumerates three of Columbia’s “numerous safeguards” meant to “ensure fairness and accuracy and to encourage full participation in the process”:

1. Students have multiple opportunities to review information provided to investigators, provide corrections to all written documents, and ask questions throughout the process.

2. Students are permitted to have advisors at every stage and in every meeting related to the process. If they choose to have an advisor with them, they are never alone when interacting with Gender-Based Misconduct Office staff and there are witnesses to their interactions at every stage.

3. There are always two experienced investigators working together in all investigation meetings, with one primarily responsible for note-taking during the interview. This process, with a two-person team, enables enhanced accuracy without the risk of disclosure if either or both of the parties creates an audio recording of the interview, as just described.

An advisor assisting in taking notes may result in fewer items slipping through the cracks than a student taking notes alone. But this supposed safeguard is not helpful when both the student and advisor can be sanctioned for being too accurate—by crossing that mysterious line where note-taking become “transcribing.” And although investigators may be allowed to take notes without the risk of sanction for transcribing, their focus will be different from a student’s; they may choose to omit detailed notes in an area where the student feels he or she needs detailed information in writing. Moreover, as suggested by the Spectator, students have expressed a lack of confidence in the accuracy of investigators’ characterizations of testimony.

Students’ ability to review other people’s notes doesn’t ameliorate the problem, either. If a student does not remember critical details from the hearing, he or she will not be able to fully correct the record, even if he or she remembers enough to know that the administrative record is incorrect. Allowing students and advisors to record, or at least take unfettered notes (including transcriptions), would make a more fully correct record possible in a way that the mere opportunity to review does not.

Goldberg further wrote that the policy does not violate the law because Columbia is not obligated to record a proceeding. The law simply requires that, in her words, “if the school chooses to record a proceeding, it must maintain that recording as part of its records. It need not provide the recording to students but if it chooses to do so, it must provide the recording to both the complainant and respondent.”

Regardless of what New York law requires, Columbia should heed the arguments of campus community members who argue that this prohibition is a significant impediment to both complainants and respondents. Fact-finding often depends on an examination of details and on checking one statement against another. Recordings and transcriptions aid in that analysis and are an invaluable tool in aiming to reach fair and reliable conclusions. Reaching reliable conclusions should be Columbia’s goal, and the university should implement policies that reflect that goal.

The post Columbia Prohibits Recording Gender-Based Misconduct Hearings Despite Student Objections appeared first on FIRE.

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