by Brandee Blocker
Content warning: This article discusses issues of sexual violence.
Columbia University’s Executive Vice President for University Life, Suzanne Goldberg, recently responded to No Red Tape’s Right to Record petition. The petition demands that the University repeal its new policy of forcing students to sign a contract stating that they will not record any sexual misconduct investigation, hearing, or appeal proceedings, or else face disciplinary action.
Columbia developed this policy because of me.
After I reported being sexually assaulted and harassed by one of my law school classmates, I recorded each meeting with the University’s Title IX investigators and retained a copy of their investigative report. Because of these recordings, I can prove that school officials misrepresented and distorted facts to help my assailant get away with it.
Although Goldberg claims that Columbia put the policy in place because of privacy concerns, concerns about a “chilling effect on the investigation process,” and “extensive safeguards to ensure accuracy within the process,” these justifications distract from the real issue at hand. Instead of fearing that students will violate their own privacy, or that of their assailants, I believe that what the University actually fears is that students will turn these recordings over to the Department of Education Office for Civil Rights or that the recordings will end up in discovery in a civil suit.
Under Title IX, any punishment for recording in these scenarios would be impermissible retaliation. As a result, survivors should have the right to record to hold the university and its officials accountable for their actions and outcomes.
In my case, the investigation was biased against me. For example, the investigators interviewed my assailant first and only once, while interviewing me twice. In doing so, the investigators focused on discrediting my story, rather than analyzing the veracity of both of our statements. When Associate Vice President for Student Conduct and Community Standards, Jeri Henry, called me in for a second interview with the investigators, their questions focused on rehashing inconsequential details, such as whether or not I remembered a third person falling down from intoxication well before the assault took place.
Additionally, Goldberg cites the two-investigator model as “enhanc[ing] accuracy without the risk of disclosure.” I had four investigators in total, including three who worked on the investigative report. As a result, the report is full of contradictions and reads like three different people wrote it—especially when compared to the recordings I took.
In the report published after the interviews had been conducted, the investigators used my inability to recall minute details to discredit my account and suggest that my assailant was not responsible. However, a recording of my first interview with them reveals that the investigator, Victoria Nunez, told me that my assailant admitted to “incidentally” touching me and “trying to get my consent,” even after I told him, “No. I have a fiancé.” This detail was omitted from their report.
During the second interview, the investigators told me that my assailant claimed that he and I went from discussing politics to me acting “as if a switch had been flipped,” asking him if he had come to my apartment “for a slurp, slurp, slurp,” and that I “made gestures with [my] tongue and continued to say, “That good slurp, slurp, slurp. I need some of that slurp, slurp, slurp.” Then, I immediately forgot saying and doing these things, so that when he “tried to get my consent,” I looked “bewildered and disgusted” like I didn’t remember any of these comments. In both interviews, I responded to these claims with outrage and disgust, maintaining that it never happened. But the investigators further revealed their bias in the following exchange:
Investigator: I also wanted to ask you if any of those comments, do they represent lyrics to any song that you’re aware of? Was there any rap music playing that had those particular lyrics?
Me: Slurp, slurp, slurp?
Investigator: Yeah. “I need some of that slurp, slurp, slurp.”
Me: I don’t know any songs that have those as lyrics. There was nothing. [To My Advisor] Do you know any songs that have those lyrics? I don’t know of any.
Investigator: Nothing that you can recall?
Me: There was nothing that I would have said that would have given him the idea that I was talking about oral sex with him at all, period.
I believe that my identity as a Black woman caused the investigator to press me to think of “rap lyrics” containing the phrase, “I need some of that slurp, slurp, slurp,” rather than recognizing the unreasonableness of my assailant’s claims.
Similarly, my recording of the hearing demonstrates further inconsistencies in my assailant’s account as compared to the investigative report. The investigators argued that despite the amount of alcohol that I had consumed, I had not been too intoxicated for him to “try to get my consent.” However, during the hearing my assailant repeatedly pointed to my intoxication as the reason for my apparent short-term memory loss, in supposedly asking him about a “slurp, slurp, slurp.” During the hearing, my assailant stated:
“I didn’t want to get up and leave immediately. I wanted to clear the air. I wanted to figure out what she thought happened. So you know, this kind of situation wouldn’t happen. I was trying to figure out what she thought happened. So we could settle it then and there. But she acted like she had no idea what I was talking about. It was strange to me. I’ve never be around a person who blinked like that. But I guess in the context, it made sense with the drugs and alcohol.”
That the investigators and hearing panel took his word for it still baffles me to this day. In their final determination letter, the panel dismissed both charges because they “did not find sufficient evidence to corroborate the allegations.” Despite my outcry witnesses’ testimony, my assailant’s admission that I said, “No,” and my call logs showing that I waited on hold for the University’s rape crisis hotline for over an hour after the assault, the panel found that my assailant’s story was more likely than mine.
The recording also captures the investigators’ refusal to look into another student’s claim of sexual harassment against my assailant. I gave them the name of a fellow classmate, who wanted to be interviewed because my assailant also sexually harassed her. But Nunez told me that they would only act on this information, if she had been harassed by someone else other than my assailant.
In my case, the right to record did not create a “chilling effect,” as Goldberg claimed it would. Refusing to follow up on a report of sexual harassment, however, certainly deterred my classmate from pursuing justice. Furthermore, Goldberg’s argument about a “chilling effect” completely misses the mark as it implies that students will be scared off or deterred by their own recording.
The right to record would allow students who meet with investigators without attorneys to know that they can hold the University accountable if their cases are handled unfairly by investigators. Instead, the practice of forcing a student to sign away their rights or face disciplinary action prior to an investigation would do far more to create a “chilling effect” for students. Rather than protecting students, this requirement will leave students wondering what University officials have to hide by strictly forbidding students from recording.
Goldberg also insists that “[t]he policy provides numerous safeguards for students” to “insure fairness and accuracy.” However, my experience shows that these safeguards do not provide adequate protection. Despite her claim to the contrary, I did not “have multiple opportunities to review information provided to investigators” or “provide corrections to all written documents.” Further, she notes that “[s]tudents are permitted to have advisors at every stage and in every meeting related to the process.”
Although I had an advisor—my fiancé and now husband—a recording of my meeting with my case manager and my husband’s eyewitness account with the investigators show that these individuals pressured me to leave him behind at every turn.
I explained to the investigators that the Columbia-appointed attorney advisors from Sanctuary for Families discouraged me from continuing with the investigation. These attorneys told me that the investigators would likely apply the more burdensome beyond all reasonable doubt standard instead of the federally mandated preponderance of the evidence standard, and that my assailant would only receive a slap on wrist, even if he were found responsible.
I filed for an appeal in which I argued that procedural errors prevented me from having a fair investigation, including the lack of “Pre-Determination Conference.” Pre-Determination Conferences are intended to give both parties the chance to raise issues about inaccuracies or omissions in the investigative report before it is submitted to the hearing panel. This way, concerns can be resolved without prejudicing the panel.
One hundred and sixty-eight days after the investigation started, I received a letter from the Dean of the Law School, Gillian Lester. The letter denied my appeal and stated that “While not formally entitled to ‘Pre-Determination Conference,’ you had full access to this process under the policy in effect during the time of the investigation.” This is untrue. I had no such opportunity, as the University added this protection to their gender-based misconduct policy on September 1, 2015, just three days before I received the hearing panel’s decision. My email correspondence with the investigators shows that they never offered me an opportunity to challenge the investigative report.
In addition, Goldberg’s response emphasizes survivors’ fear of perpetrators recording as another reason for the policy. But this fear is overstated. After all, any information a perpetrator might record during the process would be damaging to the perpetrator. Therefore, it is unlikely that they would spread such recordings. Even if a perpetrator were to use a recording to harass a survivor, such an act would qualify as a violation of Columbia’s Gender-Based Misconduct Policy.
Despite Goldberg’s suggestion that our petition misconstrues federal and state law, No Red Tape has never maintained that these laws require schools to record gender-based misconduct proceedings. Alternatively, Title IX guidance and “Enough is Enough” do mandate and entitle students to full, fair, and accurate record keeping, including audio recordings.
As we stated in our petition, this prohibition goes against the spirit of the federal government’s mandate of accurate record-keeping and transparency. While Goldberg’s statement provides a distraction from the issues at hand, my experiences show that students need the right to record to prevent the University from sweeping sexual violence under the rug.
Author Information: The author is a third-year student at Columbia Law School and a member of No Red Tape and the Black Law Students Association.