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Biden OCR Acting Head Appointee Has Dubious Record

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Biden OCR Acting Head Appointee Has Dubious Record
by James Baresel

February 1, 2021

For over fifteen years Columbia University law professor Suzanne Goldberg has intermittently hovered around the fringes of major news stories. In 2003 she nearly achieved 15 minutes of fame as co-council in the Lawrence v. Texas case that saw the Supreme Court contradict its own precedents and declare a law against sodomy unconstitutional. Just over 10 years later she was a special advisor to her university’s president on matters of sexual assault during one of the first high profile controversies over academic institutions’ responses to rape allegations. Now Joe Biden has appointed her assistant secretary of the Department of Education’s Office of Civil Rights.

Goldberg’s new position only sounds obscure. In fact it means she will be acting director of the OCR, responsible for planning and implementing the thousand and one details needed to translate a broad agenda into practical action—rendering its new holder’s record of considerable interest.

One key point in assessing Goldberg is the distinction between how she interprets the meaning of laws is interpreted and how handles allegations concerning the facts of particular cases. Where the former is at she undoubtedly favors “spinning” laws (including Constitutional law) to fit her own ideological presuppositions, as displayed in Lawrence v. Texas. The issue here is not what one thinks of the anti-sodomy law the Supreme Court struck down. It is Goldberg’s support for a judicial activism that disregarded the original intentions of legislators and spun the meaning of texts in order to bring about a change she desired through a court’s fiat rather than normal legislative processes. That she will give similar treatment to the meaning of the civil rights legislation she is now responsible for implementing seems probable.

What this does not tell us is what standards Goldberg would set for assessing allegations that a particular person violated (her interpretation of) civil rights legislation. This question does not concern what behaviors she believes violate such legislation or whether her beliefs correspond to legislators’ intentions. It concerns the standards of evidence that must be met for allegations to be officially “proven.” On this topic her record at Columbia University is too ambiguous to be reassuring.

Insight into Goldberg’s attitudes can be gained from the case of Emma Sulkowicz, who attained notoriety in 2014 as a sort of forerunner to the “Me Too” movement by melodramatically carrying a mattress around Columbia’s campus for her entire senior year. To the media she claimed to be protesting the university’s refusal to expel a student who had raped her. In reality a university investigation had concluded her allegation failed to meet even the standard of “more likely than not,” a decision reached despite excluding evidence in the accused student’s favor . The New York City police also determined Sulkowicz’s claims could not be substantiated, while the accused student voluntarily met with a member of the district attorney’s office and was assured there were no grounds for prosecution.

Sulkowicz then took her story public, launching a campaign to drive her alleged attacker from the university and revealing his name in violation of Columbia’s confidentiality policies. Short of expelling the accused student without evidence, the university surrender as abjectly as possible. Policies establishing that the break of confidentiality was grounds for disciplinary action were changed rather than enforced One of Sulkowicz’s professors accepted her mattress carrying as a “visual art project” that served as her major’s equivalent of a thesis with the full acquiescence of the administration. Not surprisingly, the accused student was subjected to ostracism and harassment.

Goldberg would not only have played a role in formulating the administration’s response to this situation as an adviser on sexual assault policies but was appointed to the office of Executive Vice President for University Life created (in part) to more thoroughly address such matters It is hard to imagine she would have been in such positions of trust while deeming the university’s low standards of proof unacceptable. When Sulkowicz’s supporters staged a “Day of Action” (carrying their own mattresses) Goldberg and the university president issued a statement saying that: “No person who comes to a university or college to learn and live should have to endure gender-based misconduct today, particularly the young women who most frequently sustain these violations.” After the accused student sued the university, its entrusted its defense to a lawyer with whom Goldberg co-taught classes rather than a member of the firm it usually employed.

Despite her indulgence of unofficial tarring of individuals cleared by formal investigations, Goldberg does seem to have the integrity to insist that such investigations be conducted in an unbiased manner aimed at objectively determining whether or not allegations are corroborated by the level of evidence stipulated by whatever regulations happen to be in force. On this point at least she has been willing to protect justice despite the ire of Columbia’s would-be lynch mobs She also revised Columbia policies not only to more effectively respond sexual assault allegations but to better assure due process for the accused in formal investigations. Subsequent to this, however, it introduced further policies revisions aimed at countering federal regulations instituted by the Trump administration in the interests of due process.

While Goldberg has the integrity to rise above show trials and (at least in official proceedings) guilty until proven innocent assumptions, her concern for justice seems too meager to be reassuring.