Columbia and the Constitution
Updated: Sep 4, 2021
By Ufon Umanah.
A former student at the School of General Studies, a former Columbia University Senator, and a current lecturer in Constitutional Law and Government at the Columbia School of Professional Studies, Christopher Riano is about as ‘Columbia’ on paper, as one could possibly be. His experiences beyond these (and other) accolades, however, defy such straightforward categorization. The Blue and White’s Investigations Editor, Ufon Umanah, CC ‘20, talked with him over the summer about the University Senate, higher education in case law, and how he found himself at GS.
The Blue and White: I remember when I was first convocated at Columbia that they introduced all of the new School of General Studies students by saying “everyone at GS has their own story.” So let’s start with that, what’s your GS story, how did you get here?
Christopher Riano: [Laughs] You know, that’s funny. I think one of the great parts about the School of General Studies is that everybody does come in with this unique background: what we call the “GS Story.” To have one of the four undergraduate schools with such a rich history in the student population adds to the student body as a whole, it adds to the classroom, and it adds really to the university experience. And in some ways I think I was fortunate in that my own GS story led me from a traditional college background, where I was an electrical and computer engineering student at Carnegie Mellon in Pittsburgh, and after some time there I realized that might not be what I wanted to do. I seem to remember an advanced theory math class in my second year where the professor came in on the first day and said, “We should all start by knowing that math is really a theory,” and I remember feeling pretty strongly that after all of these years of thinking that math is such a formal construct, to turn it into something so different really put into perspective that engineering might not be what I wanted to complete my life doing. And so I was lucky in that I was able to take a summer off, and move to New York, and start working in the modeling industry and make enough money to put a roof over my head… barely! After a little bit of time doing that I realized that it was important to be in school, and I didn’t want to not be in school during that process. So I was fortunate, I fell into General Studies in many ways, I think a lot of other people have done the same. That summer after I moved here, I took a class or two at GS, and then transferred in that fall part-time, working in order to pay for school at the same time that I started to, you know, change career paths and think of a different way to finish my undergraduate career.
B&W: The University Senate recently passed a couple of resolutions that essentially said “While we don’t exactly follow the First Amendment principles dot to dot, we want to follow First Amendment principles in as very close approximation as possible.” As a constitutional scholar, what do you think that should look like for the University? What should the University do or not do that the Constitution compels the government to do or not do?
CR: That’s a very interesting question. I think that academic freedom, which is a little bit different than free speech and free expression, it’s a little bit of a different concept, I think that academic freedom is crucial, I think it’s crucial to the health and the welfare of a university system and a university body. I think that one of the beauties of academic freedom is the fact that everybody gets to enjoy something a little bit different and I know that the way that the American Association of University Professors has approached this, which is kind of the place where this all started in part, is by looking at the academic freedom that a student has to learn, and looking at the academic freedom that a faculty member has to teach and to research, and then by looking at the academic freedom that a university has to set a university-wide mission, I think it’s great that the University wants to put forward a strong stance to protect students, faculty, and the university at large. Obviously, the University Senate is the place to do that. It’s the one body where students have a voice, where faculty have a voice, where staff have a voice, where alumni have a voice, it’s the one spot where everybody gets to elect somebody to represent them. And I think that’s great that the University Senate is looking at ways to continue the discussion debate around really crucial principles which absolutely includes Academic Freedom.
B&W: That’s funny, because when I was interviewing some Senate candidates during the last election, one of the comments that she brought up was that the University is not a democracy. She described the University Senate as some kind of semi-democratic body, but where does the University Senate lie on the spectrum between full-on direct democracy and a, I dunno, it can’t be a monarchy…
CR: [laughs] That’s a great question. Well obviously it’s a representative body, right? It’s a representative, republic-type body. And I think one thing that probably hasn’t changed too much, I remember this from my time as a student, is it’s actually very rare to see a University Senate at a university. Most universities, and I think NYU might be the other primary exception, have a faculty senate and some sort of student senate. While they may interact, they often follow completely different policies and have different guidelines and look at things in very different ways. One of the things that came out of 1968 was a University Senate where students were represented, where faculty were represented, where staff, research staff, were represented, where alumni were represented, where the administration was represented. While there are always going to be imperfections in any elected body, that’s almost the definition of the discussion that comes around the way in which elected bodies are constituted, and we can always debate and dialogue how those elected bodies should look differently, I think we actually do a pretty good job compared to most of the universities of assuring that different parts of the university are represented in a particular body that has the power to make policy decisions and recommendations to the trustees. In most other situations, students have no similar comparative voice at most other institutions. If anything, I think the student affairs group here at Columbia is incredibly influential compared to the way in which students have influence at other universities.
B&W: How so?
CR: One thing that I recall from my time as student affairs chair, and I’ve seen even since then, is that students come in with an enthusiasm and a drive that frequently will magnify what their numbers alone might be able to do. So while you might have a little bit more than maybe 20 student senators and you’ve got 70 faculty senators and you’ve got all these administration, and staff, and researchers…. Those students drive the conversation. Not every year, but most years. The students come in with different goals and different aspirations, and one thing that maybe takes a little bit of time from the student perspective is to realize that the senate’s responsibility is to Columbia, not to GS, not to SEAS [the School of Engineering and Applied Science], it is to Columbia as a whole, to all of the schools. The Senate also represents the faculty. You are responsible to try to do what you can to advance policies that the faculty are trying to advance. It is one of the most incredibly democratic bodies that you can have at a university, and universities don’t have to have that kind of governance. Students sit on the executive committee of the university. That’s incredible. It is truly unique and unusual to see that an undergraduate, a graduate, and another student have, by tradition, sat on the executive committee for decades. That, I think, is one of the things that makes the Senate pretty special. I think it’s pretty special that the students drive the conversation often times. I think that the relationship that exists between the faculty senators and the student senators traditionally has actually been quite good. Same with the administration, actually. Not always; there are always going to be debates and dialogues. But, at least in my experience, whether it was in my time as a student senator or in my time heading up the rules committee, there are far more points of agreement and far more places where people can find consensus than places where they don’t.
B&W: Ok, so tell me more about your path from student to constitutional scholar.
CR: Well, it’s so fortuitous in part because it was my time as a student senator that made me realize that my real interest lied in governance and governance structure. Let me zoom out a little bit, as much as I think politics and political science, which was my undergraduate degree, plays a role in the way in which we interact as people, I always found structure to be incredibly interesting. Maybe there’s a little engineering in there somewhere, but I always found legal structure to be really interesting. And as I finished my senior year here as the head of student affairs I began to realize, “Wow, I want to study this in law school. I want to spend time focused under somebody who is a scholar in constitutional law and constitutional theory.” So I very specifically targeted places where I knew I could work with faculty members that focused on constitutional law. And I was fortunate to find the dean of my law school was a First Amendment scholar and is somebody who is well known within their realm, and to have a pretty flexible curriculum that the law school offered where I believe that I did almost half of my credits, maybe a little less, on some type of constitutional law or constitutional practice. To have that experience was extraordinary. I realized as I continued to study constitutional law I wanted to learn and do more constitutional law [laughs] which is kind of funny thinking back on that. But it really turned into something when, after my clerkship, I knew moving back to New York and starting up my former practice, that I wanted to work in the constitutional field still. Fortunately, Columbia reached out and we had a discussion about beginning to teach here and to teach constitutional law here at Columbia. It was very important to me that my classes be open. I think constitutional law is an area that people who are high schoolers and undergraduates and graduate students can understand. It doesn’t really matter what your background is as long as you’re interested in doing reading, and research, and writing in the way in which constitutional structures work and constitutional government works, whether it’s the American system or other legal systems, in the comparative context. And with that I have, in some ways, set out on this trajectory where I am fortunate to be here, to work with the federal courts as their constitutional scholar in residence with the specific education work that they do here in the Second Circuit. Um, it’s kind of expanded where I didn’t even expect it. And I was fortunate to take an area of law that really people don’t focus on [laughs] and turn it into a passion.
B&W: Could you describe your work in the Second Circuit Federal Court of Appeals. What were you focusing on as scholar in residence?
CR: So, one of the things that I think is great that the current chief judge of the Second Circuit has been focused on is this civic education initiative. And for the last, I believe, four years, he has really been pushing to combine the bench and the bar and scholars from Columbia, Fordham, and Cardozo, and Brooklyn, and other law schools in the area, to come together to find ways to bring civics into the community. So whether that’s through courthouse visits, whether it’s through our education programs that we’ve been working on, whereby we bring teachers into the courthouse and teach advanced constitutional law topics and advanced constitutional theory, so that then teachers can go back into their classrooms and teach. And the initiative has grown and become a national model in some ways to which I think other courts have started to really look at the work we’re doing and are in this process of also creating their own similar initiatives. The federal courts across the second circuit have been all participating, and it’s been truly incredible to bring together scholars from academia, judges from the bench, and find ways to give them context to bring their experience to people that come into the courthouse everyday.
B&W: So, can I ask, if you were appointed as a judge to, let’s say, the Second Court of Appeals, how would you describe your judicial preference? Do you think of yourself as an originalist? Are you a textualist? Do you think your interpretations tend to be more liberal or more conservative?
CR: You know, it’s an incredible question and, I think, shockingly, if you really look at how judges operate, as much as there’s a legal realism that judges bring into what they do—meaning, that their own life experiences are going to influence, in part, how they look at cases—every judge is going to approach every case in front of them, and the vast majority are actually probably not that difficult. There’s a case that’s happened before, you can apply precedent, you may be able to draw a few distinctions, but most likely your decision will follow what’s happened previously. I’ve always found it more interesting—the cases—where they don’t follow precedent, or maybe something very novel has come up, and they have to make decisions based on what they have. I think the best judges, and most judges, frankly, actually aren’t necessarily conservative, or necessarily liberal, or necessarily a textualist, or necessarily somebody who, for lack of a better term, thinks of the Constitution as a document that “lives.” I think most judges look at what they’ve got in front of them: the facts of a case, which are often not in dispute. Often the facts are the facts, it’s just the law that’s in dispute. They look at what statues they have available, what constitutional theory they may know; they look at what opportunities have existed previously, where people have ruled on something similar. They do the best they can given the circumstances. I think you would probably find that more judges attach to particular areas of law, as opposed to making broad strokes on political questions. Does that make sense? So if you are a First Amendment scholar, and you become a judge, you’re probably going to look at First Amendment cases differently than other people, not as a conservative or a liberal, but instead, you’re a First Amendment guy. You’re of course going to have a different background on it. One of the things about being a judge is that you’re a generalist, and a lawyer is a doctor, you come in with a specialty, but most things will be outside that specialty, most federal judges aren’t sitting on constitutional law cases all day. [Laughs] I think most would want to have more, because they find them interesting. Does that help?
B&W: Yeah, that makes sense. But I did have a question related to a class you teach on constitutional issues facing higher education. In that class, I presume one of the big things that people wonder is, “Oh, are you going to teach about affirmative action?” Because affirmative action [per the Students for Fair Admissions v. Harvard case] is matter currently being challenged at the level of the district court, but one that I imagine will, like, Grutter v. Bollinger or Fisher v. University of Texas, come up to the Supreme Court level. Could you talk more about what the constitutional rationale for our current holistic review process is, and where you might imagine, the Supreme Court is—with or without Brett Kavanaugh—on the issue. What’s the future of affirmative action if it comes to the Supreme Court?
CR: That’s a really good question, and it’s definitely a hard one. Why? I think that you can see cases like Fisher, especially Fisher I and Fisher II, you can see cases at the district court level: there’s the Harvard case right now, and there’s a couple others that are always bubbling around. You can look at what the Court’s previously said in Grutter, Gratz v. Bollinger, and you can try to glean—“Alright, how does the Court approach this topic over time?” And the Court, as it often has to deal with hard topics, approaches it doing the best the Court can often try to do with hard topics, and, I think one thing that is pretty unique about this, and you said it well, is that universities have an interest in ensuring that they do the best they can to give a holistic review to the people that apply, for admission to the university. I think that the admissions process has changed over time—especially at the high-pressure admissions offices, where you have thousands of applicants for only a couple seats—you have to find some way in order to adjudicate when everybody has test scores that are pretty good, everybody’s got extracurriculars, everybody’s got grades, where do you begin to draw those differentiating lines when your seats are limited? I think one thing I would definitely say, I think GS has come up with a really unique model over time, when it comes to admissions. They’ve almost had to—how do you differentiate between somebody who’s been out of school two years, somebody who’s been out of school ten years, somebody who’s been out of school forty years, somebody who failed out over here, somebody who excelled at community college over here, how in the world do you begin to figure out who’s going to be ready for an undergraduate education at a place like Columbia? That’s hard. That’s a really hard question, and I think that as much as they tweaked the way GS does it, I think GS is a model that many other schools have come to study, and have come to try to find ways that they can incorporate those questions and those answers into their own admissions models, and I think you’re always going to be continually in part revisiting this debate and question, because the importance of higher education is not going to go away and the importance of quality higher education is not going to go away, and I think you’re going to always have people that are striving to access that education, and the way in which admissions offices are gonna grapple with the different backgrounds is gonna look different at different schools. I have no doubt that it looks different at CC than it would look at Harvard, than it’s gonna look at Stanford. That’s not necessarily a bad thing. Every university should have, you know, an ability to control their admissions process, in part. But, I also think that there are still unanswered questions as to how we do that as best as we can. We don’t want to just plug everything into a computer, with numbers and arithmetic, there has to be a human element, an understanding, an application pool, and I think that that’s gonna continually be a debate, and the courts are gonna obviously be playing a role in that debate, no different than legislatures play a role, and many state legislatures have said no to the way in which their state universities approach questions as to the admissions policies of their state universities, like Michigan, I believe the same in California. So it’s actually not just courts that play a role in that; it’s all the branches.
B&W: Right, that’s affirmative action. Could you talk about an area of constitutional law that people don’t think of as affecting higher education, but could have a similar level of impact on higher education as an affirmative action or a free speech case?
CR: The First Amendment probably is the most prominent that you’d see, when it’s debated on campuses, and it should be a part. Campuses should be a laboratory where we have these discussions, and if it’s not safe to have these talks on campus, it’s even… you know, where can we have some of the more difficult debates in our society? I think one of the things that I’ve always found quite interesting when it comes to campuses and the way in which campuses interact with the larger world are campus systems when it comes to the campus judicial systems, whether it’s student judicial systems, faculty judicial systems, I think it’s quite interesting to see the way in which different schools approach administrative judicial processes, you know, essentially all on a campus you have an administrative judicial process with administrative—quote-on-quote quasi-administrative—sort of law judges that are adjudicating things. I’ve always found that fascinating, especially because you see such unique differences between universities, different student, faculty and other judicial processes, quasi-judicial processes, look vastly different at different schools. I’ve always found that to be quite fascinating. Questions about representation, and those particular proceedings, or a lack of representation, if you don’t have that right under the administrative system. I think that’s always going to be a discussion point, and a debate point, especially more common now, than maybe other times. But I think that there are other areas of constitutional law people don’t even think about that interact with the universities. For example, I think about a week or two ago, we spent a class talking about bioethics, and with bioethics, which also interacts with the university—because universities are the research hubs of the United States—you have all sorts of unique constitutional liberty questions that come up, and constitutional questions surrounding individual liberties, individual freedoms, family opportunities to interfere with individual liberties or freedoms, questions around life, and end-of-life decisions, end-of-life caretaking, that happen at universities, because universities often, like ours, are attached to incredible health care facilities, and these constitutional questions come up, you would never think of that. Ever! And yet, oftentimes the case law is based on cases that come from universities and university hospitals. So, thinking about that spectrum, I think it’s incredibly interesting to see all of the areas you would never think of that are actually constitutional areas, that come up in the university system, even where you wouldn’t think that they would, and it’s part of actually what I think is so special about con law. Con-law really does interact with us, as people, as citizens, in ways that we never even necessarily realize on a day-to-day basis.