At its December meeting, the CUNY Board of Trustees unanimously approved a new policy on sexual misconduct in the wake of increased national attention on the problem of sexual assault on campus. A CUNY working group took months to draft the new policy, which was welcomed by student leaders.
But in the process of updating the sexual misconduct policy and CUNY policy on student discipline, a board of trustees committee voted to eliminate a long-standing student right – the right to remain silent without the assumption of guilt – during all campus disciplinary hearings. Students spoke out against the change and ultimately prevailed.
Student Victory
“Usually when things get approved by a committee, they get rubber-stamped by the Board of Trustees,” City Tech senior Lucas Almonte told Clarion. “It’s a huge win for students and student governments.” Almonte, the University Student Senate (USS) representative to the Board of Trustees Committee on Student Affairs and Special Programs, was part of the resistance to this part of CUNY’s disciplinary policy change.
The reversal came after an organized and vocal student effort. College-level student governments passed resolutions, student-authored op-eds circulated through student papers at many colleges and about 20 City Council members signed a letter in support of the student activists’ stance.
Due Process
At a November 24 Board of Trustees hearing, more than a dozen students spoke out to urge that the right to remain silent be continued unchanged. Cecilia Salvi of the Doctoral Students’ Council told the Board that “safeguarding” the right is “in the best interest of students as well as the reputation of CUNY as a place of public higher education.” Seung Hyun Brian Jeon, a student representative on Baruch College’s disciplinary committee, said that he had not been notified about these “critical changes” to the discipline policy until the University Student Senate brought it to his attention.
Councilwoman Inez Barron, chair of the City Council’s higher education committee, also spoke at the hearing, testifying in support of the students’ position.
Many of the students who spoke at the hearing prefaced their remarks by saying that they supported the University’s efforts to update its sexual assault policy in compliance with Title IX, the landmark federal law that prohibits gender discrimination at academic institutions. The Obama administration has recently been more active in using Title IX to press for clearer policy and better practice in relation to sexual violence cases.
Hunter College is one of 85 institutions currently under federal investigation, in relation to a complaint filed in February 2013. College officials say the complaint was withdrawn six months later and that the investigation is now “a general review of how Hunter handles complaints related to alleged sexual misconduct.” No public comment has been made by the student who originally filed that complaint.
The Trustees’ resolution cited “guidance from the Office of Civil Rights of the US Department of Education” and “recommendations of the White House Task Force to Protect Students from Sexual Assault” as having spurred CUNY’s policy review. The new policy establishes a standard of “affirmative consent” to sexual activity: “Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or failure to resist does not, in and of itself, demonstrate consent,” the policy states.
CUNY student activists, who supported this change, pointed out that eliminating the right to remain silent in discipline hearings was in no way required by anti-discrimination laws or regulations, a point that university officials acknowledged.
Committee Approval
In the November 3 Student Affairs and Special Programs Committee meeting that initially approved this controversial change, CUNY Trustees Chair Benno Schmidt and Senior Vice Chancellor for Legal Affairs Frederick Schaffer both advocated changing CUNY bylaws to remove students’ right to remain silent without the assumption of guilt. That right was added to the University’s bylaws in November 1970, during a time of widespread student protest at CUNY. The proposal backed by Schaffer and Schmidt would have ended this right in all student discipline hearings, not just those on sexual assault.
In the committee’s discussion, Schaffer cited the tragic death of a Baruch College student during an off-campus hazing incident. During subsequent disciplinary hearings, some students did come forward to testify – but Schaffer said that if they had not done so, no disciplinary action could have been taken “despite the very, very serious nature of the offense.”
Manfred Philipp, PSC Chapter Chair at Lehman College and former chair of the University Faculty Senate, spoke out at that committee meeting against this change. Philipp noted that students’ testimony during a disciplinary hearing could later be used against them in a criminal trial, where the right to remain silent without the assumption of guilt is a constitutional right.
Reversal
Schmidt concurred with Schaffer in the committee discussion, saying he wanted to give investigators “widest latitude” to determine what happened. But at the December 1 Board of Trustees meeting, it was Schmidt who delivered the news that Chancellor James Milliken had “recommended that our current policy regarding the right of silence remain unchanged,” citing “compelling [student] testimony” and similar policies at other universities as reasons for the reversal; Schmidt added that he concurred with this decision.
Lucas Almonte, the student member of the Board committee that had initially approved this change, said that he was surprised by the administration’s change in course.
“We knew we had to overcome a lot,” Almonte told Clarion. “We showed our potential, and that’ll help build momentum for future campaigns.”
