Protections and Privacy in the Gender-Based Misconduct Policy for Students

Thursday, October 6, 2016

Please see below for an update to this post.

Columbia developed its Gender-Based Misconduct Policy and Procedures for Students to provide a fair and sensitive process for all students, including those who bring complaints (complainants) and those accused of policy violations (respondents).  With this policy, our central aims are:

1) to encourage students to report when policy violations have occurred;


2) to raise awareness among individual students and the broader community about the essential community values reflected in the policy and the ways in which anyone in our community can report gender-based misconduct and obtain help;


3) to provide support to all students through professional case managers on staff at the Gender-Based Misconduct Office and to connect students with supportive resources on and off campus and to facilitate accommodations, as appropriate;


4) to resolve complaints with procedures that are both fair to all students, including complainants and respondents, and sensitive to the issues involved. 


With these aims in mind, we update the policy regularly to reflect extensive input and ideas from students who have participated in the investigation and adjudication process as complainants, respondents, and witnesses, as well as from attorney-advisers who work with students and many others. 


In this updating process, those of us who are involved in administering and overseeing the policy carefully consider all suggestions and do additional research, if needed, to assess the value and consequences, both intended and unintended, of any suggested changes. 


Recently, some Columbia students circulated a petition demanding a right to record the investigation and adjudication process. Columbia’s policy and practice, like that of most colleges and universities around the country, has long been to prohibit students from recording their meetings as part of the gender-based misconduct investigation and adjudication process. This is not new; rather, the update for this academic year was part of a group of changes to provide greater clarity on a range of issues, consistent with input from students and others.  


When a small group of students proposed last year that recording be permitted in meetings that are part of the gender-based misconduct investigation and adjudication process, we gave careful attention to the interests and arguments of students who sought the change; we also solicited input from and considered the interests of a broad range of other students and advisors and explored how our peer schools and other institutions address this issue.  


After extended and careful review, we decided to retain the recording rule for these reasons:  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.  Each is discussed in more detail below:


Privacy concerns for students involved in the investigation and adjudication process:

The Gender-Based Misconduct Office is responsible for responding to complaints fairly and with sensitivity to all students involved.  Although the Office is not a confidential resource, its aim and obligation is to protect students’ privacy to the greatest extent possible so that students can participate fully in the investigation and adjudication process and seek support and assistance from the Office’s case managers.  This interest in privacy is a substantial one for students who work with the office and for the overall effectiveness of the policy’s implementation.


Many students involved with the gender-based misconduct process at Columbia, and elsewhere, express strong concerns about their privacy and about the possibility of retaliation and disclosure by other students.  Sexual assault on college and university campuses, including our own, often occurs within social groups (e.g. clubs, teams and friendship circles), which leads many students to feel heightened concern for their privacy. 


Consequently, both complainants and respondents who are Columbia students have strongly expressed their wariness and fears that if another student involved in their case records a conversation or interview, that recording would be made public, either by the other student or by someone with access to the recording.  The policy restricts this sort of disclosure but it cannot guarantee that the disclosure will not happen. 


Many Columbia students and their advisors also express a particular unease given that recordings can be easily excerpted and presented out of context in a way that distorts the conversation or interview that actually occurred.


Chilling effect on the investigation process:

Having a recording device in the room can, and typically does, change the dynamic of any interview, or indeed, any meeting.  In particular, a recording device often has a chilling effect on the person being interviewed as part of an investigation process.  Students regularly ask our investigators whether they will be recorded, often with trepidation, and make clear their relief that the University does not record them in this process.  Attorney-advisors, both those provided by Columbia and those hired privately by students, also do not typically advocate that their clients be recorded, in keeping with students’ wishes. 


Given that the petition here is made by an organization that advocates for students who have experienced assault, it bears noting that many complainants and their advocates have especially expressed concern about an alleged perpetrator of a policy violation having a recording of the information given in the process, with the ability to disclose it if he or she decides to do so.


An additional concern arises because students and others who have experienced assault may and often do disclose their experience gradually, through the course of multiple interviews, as many researchers and advocates for victims and survivors advocates have shown.  Recording can and often does chill this process, which is directly contrary to our goal of encouraging students to participate in the process. 


Existing safeguards for students to ensure accuracy in the investigation process: 

The policy provides numerous safeguards for students, both to ensure fairness and accuracy and to encourage full participation in the process, including these: 


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.     


Fundamentally, as mentioned above, we want to encourage reporting; we want to protect the privacy of students involved in the process, which can also help others to feel comfortable reporting, knowing that the University will seek to protect their privacy as well; and we want to minimize, to the extent possible, the effects on students of recounting what may have been a traumatic experience. For these reasons we have affirmed our existing policy of not allowing recordings of our proceedings and have also prioritized the policies and practices just mentioned, which we believe help to ensure a fair outcome for all participants. For this reason and others, requests for reasonable disability accommodations related to recording are always given careful consideration in light of the provisions of the Gender-Based Misconduct Policy and Procedures. 


Finally, a short note on the law: Contrary to the suggestion of the petition, the law in this area focuses entirely on the ways that schools maintain their records of investigation and adjudication.  Nothing in federal or state law or guidance suggests or requires that schools themselves record proceedings, likely for the reasons mentioned above.  The law does make clear that 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.

UPDATE Nov. 30: In follow-up conversations regarding Protections and Privacy in the Gender-Based Misconduct Policy for Students post, some students and others have continued to urge the desirability of recording as a means for documenting problems in the investigation process and deterring reckless or irresponsible allegations. To further our collective conversation, I am sharing here a few additional thoughts on these issues here.
-- Suzanne Goldberg, Executive Vice President for University Life