ÃÛÖ­ÏãÌÒ

September 6, 2000
Dean David Leebron
Columbia University Law School
435 West 116th Street
New York, NY 10027

Dear Dean Leebron:

We are writing to you—in our capacities, respectively, as Co-Director/Vice-President and as Legal Director of the Foundation for Individual Rights in Education (ÃÛÖ­ÏãÌÒ)—regarding a situation that arose last year at Columbia University Law School concerning a criminal law examination given by Cardozo Professor of Jurisprudence George P. Fletcher. While our initial instinct was to write to the University's Board of Trustees on this matter that we consider fundamental to the survival of academic freedom at the Law School, we have decided instead to write to you in the first instance in order to see if the matter can be resolved satisfactorily.

As you can see from the list of our Directors and Board of Advisors, FIREunites civil rights and civil liberties leaders, scholars, public intellectuals, and journalists across the political and ideological spectrum on behalf of liberty, legal equality, free speech, freedom of religion and conscience, fair procedure and due process, and, as in this case, academic freedom, on America's college and university campuses. Our Web page, www.thefire.org, will give you a fuller sense of our identity, interests, and activities.

We are writing to you in your capacity both as Dean of the Law School and as a major actor in the scenario that unfolded in the aftermath of Prof. Fletcher's exam. The dean of an institution such as Columbia Law has a solemn obligation to defend academic freedom. When freedom and fundamental fairness are threatened, it is incumbent upon the dean to exercise moral authority and leadership. Failing that, moral and legal authority devolves upon the Board of Trustees.

The history of the controversy is probably fresh in your mind, and so we need not linger too long on the details. However, a brief exposition of the matter is required in order to make clear our concerns.

Prof. Fletcher is widely regarded as one of the leading scholars of criminal law in the United States. His four books on criminal justice are read in a half-dozen languages all over the world. He taught his basic criminal law course in the Spring 1999 semester. The examination consisted of three questions. The question that sparked the controversy was entitled "Revenge of the Big Monkey." It presented a hypothetical question that was nonetheless based upon facts found in a number of actual cases. It was the story of an "anti-fertility" cult that sent one of its members out on the street to "hunt out pregnant women and kill as many fetuses as he can." In the course of performing his bizarre duty, "David" attacked three women.

While the violent nature of the hypothetical raised some controversy within the Law School community, the portion of the question that seemed most controversial involved the last victim of David's assaults, a woman named "Gaye," who had been seeking, without success, an abortion of an unwanted fetus she was carrying. After David's attack succeeded in killing her fetus, Gaye "tells the doctors that she wants to write a thank you note to her assailant." This detail injected into the controversy, above and beyond the "violence against women" theme, the notion that somehow a woman can be asking for an attack or might actually be thankful for the violence visited upon her. (A copy of the exam question at issue is found at Appendix "A".)

In ordinary times, reactions to these kinds of violent and bizarre themes in issue-spotting criminal law hypothetical questions might be either subdued or non-existent. In our politically contentious times, however, a revulsion against the exam question was visible in some quarters, resulting in criticism of the professor. Of course, one cannot fault students and faculty, and even a dean, for having their emotional reactions to an exam question like this. Despite the fact that violence has been part and parcel of the criminal law from time immemorial, it is understandable that in times when certain issues are politically at the forefront such questions will evoke a particularly intense response from some. Indeed, both of us have had or continue to have active criminal defense practices, and we each have had cases the horrors of which linger in our minds, stomachs, and souls still.

However, it was the response of official power—in this case, your office—that provokes ÃÛÖ­ÏãÌÒ's concern. As you reported to Prof. Fletcher, several students contacted you and complained about the exam because it allegedly raised "legal questions under the rubric of creating a 'hostile environment' for women." Instead of dismissing this legal contention out-of-hand, you wrote to Prof. Fletcher that the women's complaint constituted "a plausible suggestion of liability an[d] unlawfulness." You went on to write to Prof. Fletcher that as a result of the women's complaint "I am required to consult with the University's office of legal counsel, which I expect to do within the next couple of days."

You noted as well that "several faculty have apparently read your exam, and expressed serious concerns to me about it." You wrote ominously to Prof. Fletcher: "Whether or not the faculty will be asked to take up the matter in any form is at this point speculative, but given the strong views voiced by some, it is not beyond the realm of possibility." While the faculty is free, of course, to take up any issue it wishes, this statement, in the context of your letter—indicating possible legal violations for "harassment"—sends the message that the Faculty might, if it wished, take action against Prof. Fletcher.

We want to make clear that we have no complaint concerning that part of your correspondence with Prof. Fletcher in which you expressed your personal concern about Prof. Fletcher's judgment in giving a criminal law exam that "would be perceived by women" in a negative fashion and might "shock" them. All of us have our own pedagogical views as to how best to challenge and teach students, particularly in the sometimes-ugly world of criminal law. While the two of us personally believe that students studying law and, in particular, planning to become practicing lawyers need to acculturate themselves to the harsh and real world in which criminal law is practiced, and while we know of no subject worth teaching that is not guaranteed to offend someone, there is surely room at the academic table for those who are more squeamish.

However, when expressing your personal predilections in the area of teaching criminal law, you went on to suggest legal liability on Columbia's part: "While we are free to a large extent to 'shock' our students and force them to deal with difficult and sometimes unpleasant problems, that does not legally justify creating an environment which will negatively affect one group's performance more than another's." The notion that Prof. Fletcher, by giving an exam using a shocking hypothetical, somehow discriminated against women and did so in an unlawful manner, is unacceptable to anyone concerned with academic freedom. It is also a bizarre interpretation of civil rights law.

We are equally concerned about a later memo you wrote to Prof. Fletcher (this one dated 11/15/99), in which you said that after the students "mentioned they considered some of the conduct they referred to as leading to the creation of a 'hostile environment,'" you actually conferred with general counsel, and "General Counsel's office suggested this was perhaps a plausible claim, although they didn't know of precise precedent." In that same memo, you responded to Prof. Fletcher's expressed concern about academic freedom by writing that he "MAY be right that the content of an exam falls within the protection of what we in our community regard as academic freedom." [upper-case emphasis in original] You went on to discuss the offending exam question, analyzing the problem as follows:

From my point of view, the fact that it is deeply upsetting and offensive primarily to one segment of our population is part of its unacceptability in terms of the standards of our community. In addition, it basically makes light of a profound social problem, namely violence to women. The suggestion that one of the victims wanted to thank her attacker is both preposterous and revealing. Again, it MAY be that this falls within the rubric of academic freedom, but an examination in a large course is a public act, and the same notion of academic freedom allows students and colleagues (including me) to express our views on that exercise of academic freedom as it affects members of our community."

Of course, you and others are indeed free to express views on the exam and how it conflicts with your notion as to what "the standards of our community" are or should be. However, the notion, repeated again in this quoted portion of your letter, and again emphasized in upper-case letters, that the exam "MAY" be protected, is very disturbing. Surely the exam IS CLEARLY protected. Further, we find it very unsettling that the dean of one of the world's major law schools not only would think that this exam might constitute a legal violation, but also would fail to understand the pedagogical reason for the inclusion of an unappetizing detail (which you termed "both preposterous and revealing") such as "the suggestion that one of the victims wanted to thank her attacker." (It is obvious to us, and to numerous other lawyers and law professors to whom we've spoken, that this detail was included in the exam hypothetical in order to inject into the problem the issue of what constitutes "consent" in an assaultive situation and how such consent might affect the ultimate issue of criminal liability.)

However, the major objection we have to your response to the exam was not your failure to understand its pedagogical value, but your refusal to acknowledge that virtually any exam question conceivable, and surely this exam question, is protected by even the narrowest reasonable interpretation of academic freedom and is by no stretch of the legal imagination classifiable as unlawfully creating a "hostile environment." In reality, what has happened here is that some faculty members and students have attempted an exercise in point-of-view censorship because they do not like either Prof. Fletcher's teaching methods or his ideas.

There is another issue that disturbs us. As noted, you warned Prof. Fletcher that the faculty might be "asked to take up the matter in any form." You appeared to question the appropriateness of Prof. Fletcher's teaching courses such as first year criminal law. Such a course is mandatory, and therefore some women law students would be forced to take a class with Prof. Fletcher. (We note, parenthetically, a comment in The Columbia Spectator of 9/23/99, that one "student suggested that Fletcher should no longer teach first-year Law students.") This hint that somehow a female student should not be forced to deal with Prof. Fletcher is further strengthened by your remarkable admonition to him, at the time of the controversy when he was trying to ascertain the views of his students: "I must emphasize that because of potential liability issues, you must not at this point directly contact students regarding this matter."

While no formal reprimand came from the faculty, there was a disturbing aftermath that leads one to the conclusion that your lack of support for Prof. Fletcher caused a faculty committee to act on the assumption, so clear from your memos, that he was somehow dangerous to women law students and that they therefore should not be forced to take his courses. After the exam contretemps, Prof. Fletcher proposed that he teach a mandatory course for incoming LL.M. students. The faculty committee rejected his application to teach this course for which he was eminently qualified. It is very difficult to avoid a conclusion, or at least a strong suspicion, that this remarkable action was taken because of a feeling by some faculty members, and by all appearances shared by you, that Prof. Fletcher's exam marked him as someone who has a problem with women and who therefore should not teach a required course. The committee issued no reason for rejecting the application. The rejection of Prof. Fletcher's application to teach the graduate course has had a chilling effect on academic freedom. It should not go unchallenged. Ordinarily, it would fall to the dean to issue a challenge.

We note that, already, this incident has begun its inevitable journey into the literature of academic freedom. Nadine Strossen, Professor at New York Law School and current President of the American Civil Liberties Union, has written of the matter in the new introduction to the second edition of her highly regarded book, Defending Pornography. Prof. Strossen has focused in particular on your public lack of support for Prof. Fletcher and for academic freedom:

While no official sanction was imposed against Fletcher, Dean Leebron's letter to students conveyed official disapprobation: "On behalf of the law school, I want to express my regret for the offense and distress that many of you...experienced." [at xxxiii]

Prof. Strossen goes on to explain the obvious—why it is simply unacceptable at an institution like Columbia for there to be any question concerning the propriety of administering the exam that Prof. Fletcher gave:

While some complaints focused on the exam's "tone," rather than the issues it presented, some also opined that any issues of particular concern to women, such as abortion or bias crimes against women, should be off-limits as examination subjects. By this standard, I would have to plead guilty to creating a hostile environment for my female students by including a question in the final exam for my fall 1999 constitutional law course about the Violence Against Women Act, whose (un)constitutionality was argued before the Supreme Court in January 2000. The lower court opinions and the lawyers' briefs, portions of which I required my students to read, were replete with graphic details about sexist and sexual violence and abuse against a woman. [at xxxiii]

This brings us to the matter of the appropriate remedy. FIREproposes:

1. A written directive of decanal policy should be issued concerning the extent to which academic freedom broadly protects a professor's right to give an examination dictated by his or her professional judgment. The policy should also set forth procedures to be followed in cases in which either students or faculty have a complaint concerning allegedly offensive material conveyed in class or in an examination. As part of these procedures, the professor who conveyed the allegedly offensive material should be consulted. The dean should not become involved unless collegial conversation fails to achieve a satisfactory resolution. In no event should the professor be advised not to contact his or her students unless there is a credible allegation that the professor poses a danger. Action should be taken only against a professor found to be incompetent or otherwise incapable of fulfilling his or her duties properly and in a lawful manner, and then only pursuant to and after procedures laid down in writing in advance.
2. Your office should issue a statement indicating that Prof. Fletcher's examination cannot, by any stretch of the legal imagination, be classified as actionable or unlawful, that the exam cannot be deemed "harassment" creating a "hostile environment" within the legal meaning of those terms; that the exam is fully protected by academic freedom; that there will be no sanctions imposed upon Prof. Fletcher growing out of the May 1999 examination; that Prof. Fletcher is free to teach any required or elective course within his areas of expertise; and that the April 2000 decision of the Faculty Committee that Prof. Fletcher not teach the LL.M. course be reversed unless a convincing reason can be stated why he should not be invited to teach this course. FIREbelieves that these remedial actions constitute the minimum necessary to correct the wrongs inflicted not only upon Prof. Fletcher, but as well upon his students, the institutional integrity and reputation of Columbia Law School, and the values of free inquiry and academic freedom that are so fundamental to all that Columbia and liberal education stand for.

Prof. Strossen concludes: "At stake in this situation are not only free speech and academic freedom, but also women's dignity and equality." [at xxxiv] FIREconcurs. We urgently invite your prompt response.

Yours sincerely,
Harvey A. Silverglate Director Vice-President
Nicholas S. Hentoff Legal Director
Attachment "A": Copy of Prof. Fletcher's May 1999 criminal law exam question.

Cc: Jonathan Cole, Provost of Columbia University Prof. Lance Liebman, former Dean of Columbia Law School