The Real Problem with SAE’s Bus Video

“The best lack all conviction, while the worst
Are full of passionate intensity.” —W.B. Yeats, “The Second Coming“

If you’ve read this blog, or if you’re going back and doing so now, you know I’m pro-Greek life. I really like fraternities and sororities and, for the most part, think that they are often the “low hanging fruit” when someone wants to seem like they’re addressing systemic issues of alcohol and drug abuse, rape culture, and other issues that I despise. My premise in earlier writings was that people who want to target Greeks can easily do so because Greeks give them plenty of opportunities, but that the things we vilify them for are done by less targeted areas of a campus community. In other words, if we’re fighting Greeks then fine. If we’re fighting the things we accuse them of then we need to be more systemic in our approach. I have also said that part of the problem is that by segregating themselves, requiring a selection and initiation process, and by being so visible as an exclusive group Greeks are understandable targets of scorn and concern, especially by non-Greeks.

Then the SAE video comes out with a bus full of white kids with names like “Parker,” embodying the privilege that people despise and “proving” what everyone has said about them. Enough people have broken down the video, but I think that there is a really important point being missed in the discussion of whether fraternities are racist or “America’s apartheid.” The video is terrible and I have no doubt that it’s happening elsewhere. In fact, we have already had this discussion when we were talking about sororities at the University of Alabama a year ago. I hate the entrenched privilege and exclusion in many Greek chapters, but the thing that makes me the saddest about that video are the brothers and guests who weren’t chanting.

I’m not sad that they are in a chapter that got kicked off. I’m not sad that they’re embarrassed or that people think they’re racist. I’m sad because they did not have either the tools or the courage to speak up. I’m sad that in the BEST light, this is an organization run by the worst of them. I don’t mean their elected President or other officers, but I mean the guys who put their chapter at risk with every social event, endanger the health and safety of their guests and brothers, and who do so while demanding loyalty and silence from those people in the name of “brotherhood.”

When I spoke at a sorority on “Making Good Bad Decisions” I asked the organizer what she wanted me to talk about. She said that in their group of about 130 there were 20 or some odd sisters who were going to “get them in some real trouble.” This didn’t mean that other 100+ were following all the rules, but that this group were doing things without regard for themselves, their sisters, or their chapter as a whole. I asked “why do you think you guys let them” and the answer was the same as I hear from officers when I help a chapter in disciplinary trouble “nobody wants to be that person” who ruins a good time or seems uncool.

I believe that there are chapters that are irredeemable. I believe that there are chapters that do nothing wrong and meet/exceed every expectation set for them. However, I think most chapters are filled with good men and women who may break some school policies on occasion, but who are adamantly opposed to the same things the rest of us are–hazing, forced consumption of alcohol, sexual assault, racism, homophobia, etc. I also think that many of those chapters don’t have the ability to intervene and address behaviors that are against their organizational and personal values, and that that inability leads to the worst of them controlling how the chapter behaves.  When a chapter does not address that behavior and correct it, it is the same thing as embracing it. So when a fraternity in trouble comes to me and tells me that “it’s the seniors” or “this one pledge class” that keeps getting them in trouble I tell them that that stopped being true after the first time they did something with which you disagreed and the chapter did nothing.

The simple fact is that disciplinary action isn’t going to fix anything unless the chapters themselves preempt the need by dealing with those people within their organization that are betraying that organization through their actions. National organizations are suspending and revoking charters and schools are suspending and expelling organizations more than ever, and in some cases disbanding entire Greek programs. This will not stop until fraternities and sororities show that the problems are with a small percentage of their members and are being addressed meaningfully by the majority because, until then, the ones caught are indeed the entire chapter in every way that matters. The obligation for this training should be with the national chapters themselves. College administrators can support this bystander training, but the responsibility needs to come from the organizations that abandon chapters when things go wrong and claim that they are not acting in accordance of the national values. Unless a national organization BOTH teaches values AND how to support and act within those values, they are 100% culpable for the actions of their chapters.

Does your chapter do anything to address harmful or hateful behavior? Does your school provide any bystander training? Let me know.

 

Next post: Should the Oklahoma SAE’s have been suspended? What about the brothers?

A Brief Guide to Interacting with Administrators Without Making Them Want To Strangle You.

People in student affairs (i.e. the “adults” who work on all those things outside the classroom that make your school great) work in the profession by and large because they love students. The hours are long, the pay kind of sucks, and “admin” is said the way people say things like “lawyers” and “the Kardashians.” But despite all the bad parts, when we get to work with students and help them develop as people and/or leaders and challenge them to accomplish things that they would not accomplish without our help-that’s just awesome.

Usually.

Sometimes the students we deal with make us want to scream and pull our hair out (or in my case, someone else’s hair.) Students can be complete pains in the butt, irritating, and infuriating, but they don’t have to be.

Usually. 

Unfortunately, some people are just entitled jerks.

To help you avoid common mistakes, and to help my colleagues avoid having to deal with them, here are some things you can do or not do to make sure your admin loves you.

1. Get to know them before you have to. Whether you live on campus, are in a student organization, are Greek, or do (or potentially want to do) something besides go to class and study-there are staff there to help. Set up a meet and greet with them and just get to know them. In addition to helping them spot your name on a list of otherwise anonymous people, having a connection with them will help you get the benefit of the doubt if something does go wrong. (And ABSOLUTELY get to know your RAs. They are not only connected to the campus administration, but they are also often the first people who will interact with you if something happens.)
2. Make appointments and keep them. Yes, the admin will do everything he or she can to accommodate you including putting all of their work on hold to speak with you, but that does not mean they should have to. They are professionals with a Masters degree or higher, and unless they have open office hours, they deserve the respect of you making an appointment. That being said, dropping in without an appointment is 100 times better than having an appointment you miss without advanced notice. (And if you do miss it, apologize and reschedule at his or her convenience.)
3. Invite them to things with notice. Believe it or not, most student affairs staff work 50+ hours a week. While we can’t go to everything, we would love the invitation and will do what we can and the more heads up we have the more likely we can do it. Also remember that these are people with families and lives, so “notice” means more than a day.
4. Try not to ask them for things outside of the office context. Specifically, when you see an admin you know and work with outside of the office, that isn’t the time to tell them or ask them something you want to remember. Note: if they ask you, this does not apply.
5. Thank them. This is a time when you can stick your head in, send a quick email, write a note on FB, or send a Somee card. It doesn’t have to be much as long as they know you appreciated the work they did. They get paid to work, but the caring they showed you was on their own time.

 None of this will get you out of trouble or ensure that you get that position you really want. There isn’t an ulterior motive or something immediate to gain. Part of being a leader (or at least an adult) is learning how to recognize and appreciate the people that work with you.

Do you do anything to show the staff you respect them? Are you in student affairs and have another suggestion? Let us know in the comments or email me at DaveK (at) CollegeJudicialConsultants (dot) Com.

 

 

Stop Forcing Good People to be Defined by Bad Decisions.

“Confession of errors is like a broom which sweeps away the dirt and leaves the surface brighter and clearer.” -That Gandhi Guy

 

After running CJC for the last 18 months, being the Chief Judicial Officer at MIT for over 4 years before that, and being involved in student misconduct for 5 years before that I know one thing to be true—almost all students are really good people. That doesn’t mean that these good people don’t do some really bad or really dumb things, but the fact that they do them does not turn them from individual symbols of hope and limitless potential to Jack the Ripper (or even John the Plagiarizer.)

Who doesn’t love this guy? If he was a student at any college and made as many mistakes as he has, he would have been expelled.

Instead what happens is that once they mess up they find themselves at a place where they think they are totally screwed and their life is over if they get caught, and will be able to skate by if they do not. This isn’t a hard choice for most of them because the consequences of being caught are the monster under the bed, and not getting caught means they get to move on with their lives. Faculty and staff know that students are still developing as people (there’s even something called “student development theory,”) but people act shocked and disappointed when, despite the lack of almost any real-world examples, students don’t make the decisions we expect “fully developed” people to make. We punish them as if they have broken some rules of God and nature that make the university or the community what it is, and that their failures endangered everything good in the world. What we do not do is allow for the fact that, in a lot of cases, we have failed them by not giving them a third option.

 

Before you say what I know you’re thinking, let me be clear: most students are in similar places as the “bad actors” developmentally, face similar pressures, and yet act ethically and intelligently even when things get tough. There is definitely an obligation to the larger community to hold the “bad actors” accountable to reinforce the good decisions and support the majority of students who do the right thing. I get it. I believe it. I tell my clients that. However, that does not mean that we are not remiss by not offering any  opportunities for students and student groups to come clean.

 

The way bad decisions work (and I speak from experience) is that they are made and there is a period of time between the bad decision and when you get caught (assuming you get caught, which is less likely than we pretend it is.) During that time, you worry about what will happen if someone finds out, envisions your dream career and life evaporating into nothing, and the people you love and respect being so disgusted by you that they abandon you completely. For many students the time after the bad decision is when things get worse-they drink to drown the guilt, they start skipping class to avoid the professor, they get angry at the pledge that “makes them” feel bad, etc. Even more tragic is that they occasionally spend so much time trying not to feel terrible that they start justifying what they did. They say things like “everyone does it” and “it’s not that big of a deal.” When we do not help students be reflective and learn the right lesson, they teach themselves the one that makes things better for them.

 

And that’s where we fail all students.

 

What are we trying to teach the next generation of leaders? If the lesson is “never make a mistake or bad decision” then we are simply fools. Nobody goes through life flawless (except for maybe one skinny bearded fellow, and I’m pretty sure even he hung around with whores and thieves.) We should be teaching people that it is not a bad act that defines them, but what they do about their bad decisions. In other words: character is not defined by perfection, but by identifying when your actions have hurt someone or something and doing what you have to do to make it right.

 

Schools must offer a way for a student to come forward before he or she is caught and admit the mistakes he or she made without facing the same (or similar enough) consequences that he or she would if he or she was caught. That avenue should allow them to escape the more common penalty and instead provide them with the opportunity to make amends. SOME schools offer restorative justice options for lessor misconduct, but I don’t know of (m)any that allow larger misconduct to be dealt with in this manner.

For example, If a student copies a solution on a homework, hands it in, and immediately regrets it there should be a clear path for her to confess and do whatever is necessary to atone for that decision. Otherwise students will remain in the situation they are now—covering up all misconduct because they believe (usually correctly) that admitting it will guarantee that they get suspended or that they will otherwise be stopped from pursuing their dreams, even temporarily. 

 

I am not saying the restorative path should be easy, or that students will be willing to do what’s necessary to redeem them. However, there is value in developing the next generation of leaders to be people that admit when they make mistakes and are willing to do whatever is necessary to repair the damage they cause. If a student comes forward for academic misconduct before the act is discovered, a professor could give them an incomplete, make them complete a substantial assignment, and lower their final grade even if they complete the assignment. That’s a punishment, but it also provides an incentive to do the right thing in a way that either getting away with it or having a hearing does not. If the atoning student chooses not to do the restorative work, then that refusal can be used against him or her at a subsequent hearing because their lack of character will make the current sanctions that much more appropriate.

 

Without providing students a “safer” way to come clean we are teaching them that once they make a mistake they should do everything they can to not get caught. That failure to develop character is much more serious to me than someone copying question #4 on the third homework in their Physics I class. Once you create a culture where the people who make the worst decisions do what they can to get away with that bad decision, you are actively taking people who are fundamentally good and train them to be the next Ken Lay or CEO at Bank of America. Colleges should do better.

Let me know your thoughts in the comments or at DaveK@Collegejudicialconsultants.com.

 

Never Accept “Choose Your Battles”

You will interact with many faculty and staff this semester as you engage in various activities outside of the classroom. Some of you will be working on developing your leadership skills and this means you will work with dedicated professionals all committed to helping you develop strong leadership skills. There will be retreats, meetings, trust falls, Leadershapes, and other awesome experiences. As you work with these people you will become closer to some as you identify your area of interest (Greek life, public service, college radio, LGBTQA advocacy, etc.) and assume a leadership position in these areas. You will hear words like “change agent” and be told that you can make a “huge impact” within your area, both locally and globally. If you do well, you might even be invited to sit on numerous administrative committees as the “student voice” and that will give you an inside view of policy making on a college campus. You will get to know some of the higher level administrators and feel really involved in the running of your school.

Then one day, you’ll be talking to some friends and realize that there is something you think is unfair or just plain sucks. Maybe your school receives money from a corporation you believe is anathematic to its values, maybe you think the sexual assault policy revictimizes, or maybe you just think your student fees are being mismanaged. It doesn’t matter what the issue is. The point is that there will be a policy or lack of a policy that you believe affects the people and issues you cares about. You know it will be controversial and will upset some people, but it is important to you. So you turns to your mentors in student affairs or in the administration who hears your concern, they nod and indicate that they’re listening to you, and when you’re done they say “You should choose your battles.”

That phrase, and the idea behind it, is completely against everything you are being taught about being a leader, and you should demand more from your co-curricular educators.

While there is some value in the idea that not everything that annoys you should become a bloody cage match, in almost every instance the person who tells you to “choose your battles” is in a position of authority over you, disagrees with your opinion, and/or knows that if you choose that particular battle their life will become more difficult. Unfortunately, there are some places where the upper administration is insecure or desires to separate itself from controversy. At those places, the administrator you’re talking to might indeed get some heat if you protest too hard or loud, but that should never stop you from fighting a fight you think is worth it. “Choose your battles” is not the advice you give someone when you want them to pursue an issue, and it should never be the advice anyone in student affairs gives you. It is lazy, passive aggressive, and anti-developmental-you deserve better.

No matter how much of a student advocate someone is as an administrator, that person is still an administrator. This means that he or she is part of the system that is perpetrating the problem. This is true for everyone (including me) and you can forgive someone for not wanting to be seen as backing a potentially high-conflict issue when that concern isn’t shared. However, what you should not forgive them for is not helping you understand the potential consequences of their battle and then helping you prepare for that battle if you want to proceed.

Sometime ago someone decided that education should be neat. That we should be able to measure knowledge like calories and that there was such thing as “acceptable” dissention. That’s crap. The truth of the matter is that you should be encouraged to not only make mistakes, but make HUGE mistakes. Career injuring mistakes. Picking your teeth off the floor mistakes (this might have just been me.) This does not mean you should be sent into battle ignorant of the consequences, but that once you decide the potential consequences are worth the risk—they should cheer loudly for you. The key is to make sure you’re making informed mistakes. Once you do, you should be raised high on their shoulders and have a spotlight on you a real leader—willing to risk what others will not to fight for an issue you believe is right.

Notice that nothing I’m saying means that the administration has to back your issues or even defend you from people who attack you for fighting your chosen fight. It does mean, however, that they should help you develop the tools and understanding you need to fight the fight you choose. As long as you know that your battle could result in a disciplinary violation, jail time, getting fired, or any other negative consequences and your understand what those consequences mean-they have done their job.

I think there are three primary responsibilities of the student affairs staff working with you to make you the type of leader willing to stand strong in the face of opposition for your principles. The should:

1. Help you really understand the issue. When something happens that you don’t like, you tend to react strongly. However, few issues are as simple as they seem. The administrator should help you understand why a decision was made or a policy is in place, what it accomplishes, who it affects, and who will be affected if your are successful. I have had many students decide that an issue was not “that bad” once they understood it completely, and regardless of what you decide to do once you have all the information you will be able to be confident as you move forward.
2. Help you identify the proper audience for your complaint (or target for your outrage.) When something happens on a college campus people tend to write the President or the Trustees without realizing that doing so will just delay a response since the higher you go in a university hierarchy the less chance there is that person will be the one who understands the issue. Administrators have the ability to look into issues and identify the decision makers, and they should do so and share that information with you to not only make sure you have the right person/people in your crosshairs, but to protect everyone else.
3. Make sure you understand all the rules and policies that will come into play as you move forward. Most campuses have rules governing when and where students can protest, appropriate language, posting rules, etc. Making sure you understand the rules not only stops you from getting in trouble accidentally, but it also allows an administrator to give you the proper framework to make it more likely you will be heard.

In the academic world students are taught to challenge the information that has been amassed before them, and to rethink issues and challenge the norms. Until student affairs not only supports students as they fight against issues but encourages them to do so, it can not claim to fully develop leaders or advocate for students. Every student affairs professional I have ever met is dedicated to doing both of those things, but when discourage dissent they encourage conformity.

And frankly, we have enough apathy and conformists in my generation. We don’t need more from yours.

Has this happened to you, or have you had the opposite experience? Let me know in the comments or email me at DaveK@collegejudicialconsultants.com!

An Easy Solution to the Innocence Problem

College Judicial Consultants I wrote a piece about the problem with proving your innocence in college judicial hearings—quite simply, if you’re innocent it is very hard to be found not responsible with the preponderance of evidence standard.

I’ve recently worked with another completely innocent client, and the same problems are there. She was accused of doing something that she not only had no idea how it happened, but for which she also had evidence-supported reasons for believing didn’t happen. I won’t talk about the details, but an analogous case would be if she were accused of arson.  A house burned down because the stove was left on, and she lives alone and had nobody over. When she left the house, she turned off the stove, took a picture of it being off with a time and date stamp, and then checked it one more time before leaving. While it’s true that the house burned down and the stove being on was the reason, she had no way of knowing that it was on prior to the blaze or how it was on considering what she did.

Disciplinary boards usually use a burden-shifting approach in determining responsibility. The respondent is innocent before the hearing, but once the complainant shows that something happened and that the respondent did it, it is now up to the respondent to prove it didn’t happen or she didn’t do it. This is how it works in court (again with apologies to my law professors,) but in judicial cases it is a much heavier burden than it is in court, and almost impossible for innocent respondents to meet in most circumstances. In criminal court, all the defense has to do is show that there is a “reasonable doubt” that the defendant didn’t do something. That’s a 5-10% chance. In civil court they have to show that it is 20-30% likely that they didn’t do something. However, in judicial cases the respondent needs to show that they did not do something that happened with more than 50% certainty. Once you show that something happened and that the respondent had either control over that thing or should have had control, the noose is essentially tightened.

I know that’s confusing, but think of it this way: I show you that a house burned down, that the stove being on was the reason, and that the respondent lives alone. How can she possibly show that she didn’t do it with more than a 50% certainty? She would have to know how it actually did happen and then prove it. What this means is that if the “most likely” explanation for a violation of the conduct code on campus is that the accused person did it, there is essentially no way to prove she didn’t.

It gets worse for the innocent student during a judicial hearing.

If you actually didn’t do something and you try to show the disciplinary board that you didn’t do it, that defense can hurt you. If the board thinks that you did it and finds you responsible, it means that they do not accept your version of what happened. Since they don’t accept your version there is a good chance that they think you’re lying, or at least trying to avoid responsibility. Since the disciplinary process is supposed to be “educational,” boards are likely to sanction someone they think responsible and avoiding responsibility harsher than someone who “comes clean” and accepts responsibility. This means that if an innocent student cannot prove that she did not do something, trying to prove it can hurt her more than simply pretending she did it and accepting responsibility even though she is innocent.

The solution to this is simple-retrain the boards. Most respondents are not “innocent” or at least not completely innocent. Some may have mistakenly broken a rule and are being accused of doing it intentionally, but most actually did something wrong that brought them in front of the board. This means that the current way of doing things “works” most of the time. However, if boards are trained to analyze information from the perspective of the accused student many of these false findings of responsibility can be avoided without any impact on the current success of the boards. So if a student can come forward and show that she took reasonable steps to avoid something, that she was unaware of something, or that she actively believed something that would have prevented the violation happened it would no longer be necessary to show what “might” have happened. It is much easier to “prove” what you know to have happened or what you did, than to prove what you had no way of knowing.

Sure there may be some students who escape findings of responsibility, but as the saying goes “It is better that ten guilty persons escape than that one innocent suffer.”

What do you think? How do you weed out “innocent” students or ensure that they don’t face an insurmountable burden? Write a comment or email me at DaveK (at) Collegejudicialconsultants (dot) com.

A Real Recipe for Disaster-Suppress Student Voices

Recently there have been some disturbing stories in the news. After last year with the incidents with the Occupy student protesters at Berkeley and Davis, you’d think that colleges would have learned that bad reactions to student frustration elicits a stronger reaction than the protests themselves.

Nope.

In a time where some educators and former student activists lament the apathy of this generation in America, some schools are using their campus judicial system to punish students who are protesting actions by the Boards or what they see as insufficient action by administration. Using the system in that way is dangerous because it stifles the voice of the leaders of the new generation, sets a precedent that will silence student voices for years to come, and completely undermines the credibility of the judicial system itself. To be fair, the student protesters may have technically violated the rules regarding protests or trespass or embarrassed the school at key times, but the solution to these violations is creating a “teachable moment” and not creating a disciplinary record that may keep them out of graduate schools, deny them employment, prohibit them from getting government clearance, and keep a record in the judicial office for years after they graduate. While the students’ choice of methods may be unfortunate, using the campus judicial system against them violates the entire that system, not to mention completely invalidates the school’s attempt to develop leaders.

A good campus judicial system is supposed to be an educational response to violations of the values and expectations of the campus community. Since that is a fairly nebulous concept, rules are put in place that are meant to reflect those values and/or ensure the health

and safety of the campus community as a whole. A good system also allows administrative discretion to make sure that people aren’t using the nuclear option against students when diplomacy would work. It is that aspect that has failed here, and I cannot believe that the failure is accidental.

One of the most amazing experiences you can have as an educator is watching as a student realizes that he or she can make a difference. Schools almost universally establish co-curricular goals of giving students the tools they need to become leaders, critical thinkers, and problem solvers. Schools have offices dedicated to leadership development, entrepreneurship, and service learning to help train those students passionate about making change in their local or global community, and to inspire others to become so. Unfortunately, to today’s generation, the idea of a metaphorical “suggestion box” just isn’t good enough. In a world where you can use social media to directly connect with Donald Trump, Lady Gaga, President Obama, and Speaker Boehner, having to walk up the chain of command is seen as slow, unnecessarily complex, inefficient, and simply not good enough. This is especially true if the issue involves social justice, ethics, or what is viewed as recurring or imminent harm. On the one hand, it is important that passionate students be taught effective ways to voice their displeasure, engage the help of the right people, and do it in a way that allows change to occur. Administrators might argue that the students are being punished because they went outside of the accepted methods of protest and created a disruption that was unacceptable, and perhaps did so without trying to accomplish things the “right”way first. With all due respect, that is a terrible reason to actually punish students.

The simple fact is that schools are, in many ways, a business. Their “widget” is education and it is an amazingly valuable widget that I love, but it is a widget nonetheless. There are some schools that do a great job walking the line between corporate thinking and the ivory tower ideas of the past, but many of them do not have that luxury. Some schools have placed people in upper administration that are business people first and educators a distant second, if at all. So the administrative hierarchy is filled with more red tape and obstacles at a time when society is tearing those down. This has made it very difficult for students to find consistency and transparency, and has actually increased the frustration many of them feel. While a school should want even the most frustrated students to voice their concerns the “right” way, if students do not feel that those ways work, there has to be an awareness by those schools that the student perception is at least partially their fault.

If students identify what they see is a problem and they try to work to resolve that problem with little or no success, what do we want them to do? What would a leader do? Once that group has spoken to the right people and been told that “their concerns are noted and appreciated” but the looming deadline to affect change approaches, how are they supposed to ensure that they are not simply put off until the subject of their concern has already taken place. Cooper Union, for example, will be charging tuition for the first time ever and that was a done deal before the first student or alumnae could raise her voice.

In a time where most good people object quietly to the injustices they feel, we have the opportunity to raise a group of change agents willing to take vocal stands against those same injustices. We may not agree with them, we may not like their positions, and we may not approve of their methods, but we sure as hell should not actively silence them. Silencing discontent does not eliminate the problem; it exacerbates it. The global community is full of those examples—Turkey, Egypt, Syria, China, etc. When you stifle one voice aggressively those people who were simply content to watch start choosing sides, and the last thing an administration wants are students that lose faith in their ability to advocate for them. It’s simple—if the administration does not have the students’ back, the students will cut administration out of their process.

Now, I am in no way saying that any student action should be accepted without consequence. There are clearly things that a dissatisfied student could do that not only should be addressed swiftly and severely, but must be. However, as long as the student actions do not impact the ability of other students to pursue their own interests using the campus judicial system is the wrong response. Yes, in other countries or in the streets of this country a protester can expect to face some sort of legal consequence, but college campuses should be different. In the long run, disciplinary probation will not be a big deal to most people, but students do not know that. Most students believe that being on probation will hurt them down the road, and every administrator knows that belief exists. If the students punished in these cases don’t care about being put on probation, you can bet the administration knows that other students will. Punishing these students is more about making sure that any future student who gets frustrated to the point of taking action thinks twice. Administrators know that many of them will simply suffer in silence thinking that the risk isn’t worth it, and that they will therefore not have to deal with these types of situations in the future.

If colleges do not encourage students to vocalize dissent, there will literally be no place left that does.

What do you think? What should students do if they feel that they are being ignored or simply being paid lip service? What should colleges do to reinforce the idea that there are “right” ways to do things?

I should also say that if you are in trouble for protesting at your college, we will help you navigate your judicial process for 30% off our normal prices. Keep fighting the good fight.

Apples and Oranges—Sexual Assault as a Judicial Issue (pt. 2)

There is a lot of understandable outrage from sexual assault and interpersonal violence advocates about the way they see assaults mishandled on college campuses. The criticism I hear most often is that since sexual assault/rape is a crime it should be handled by the police and the criminal justice system. They worry that a college will mishandle things or pressure a victim, and that the victim will not be able to avail herself of the criminal courts. As a result, they fear that the rapists and assaulters on campus will go free or, if they are punished they will get a slap on the wrist compared to what would happen if things were handled “correctly.”

Let’s be clear—recent history has given these advocates a lot of cause for concern. I have already discussed investigations about the way very prestigious schools have mishandled sexual assaults and the reporting of incidents, and those failures (along with the other anecdotal ones any advocate can tell you) have engendered an understandable belief that schools are actively (or at least negligently) silencing reports to make themselves look better.  After all, they only have to report sexual assaults they know about so the less they know the fewer “occur,” and the safer their campus will seem to prospective students and their families. Since I do not know the actual story at any of these schools, I do not want to comment on their intention. I have already talked about how a bad system can hurt victims; however, the college judicial system is no worse than any other system and in some cases has distinct advantages for a victim. If you believe that the solution to the problems with some judicial systems on some campuses is to eliminate their ability to hear these cases, you will be hurting more victims that you help.

As a hypothetical, let’s say that a victim comes forward and says that she was sexually assaulted at a party in an off campus apartment. She says that she went there because she liked one of the guys that she knew from class, but since she was nervous she drank more than she normally does and got very drunk. While she remembers flirting with the guy she liked, she doesn’t remember much after she played a drinking game with “jungle juice” but that she woke up in his bed with him and knows they had sex. When she woke up and realized what happened, she freaked out because she would NEVER have had sex with him. In fact, she is known as a good girl, and that has made her somewhat of a challenge to the boys that know her. When the boy woke up he was being very nice as if nothing was wrong, and offered to take her to breakfast and asked if she would spend the day with him. She made up some excuse she can’t remember and went back to her dorm. A week later her RA brought her to the sexual assault advocate’s office when she heard what happened.

There are much more “horrific” cases that occur on a college campus, but do not be confused—this is sexual assault. Situations like this were the majority of cases that came to me as a judicial officer-ones where the extent of the sexual act was never a question, the victim and attacker knew each other (and often in a positive way prior to the assault), and alcohol was involved. In these cases a victim is often unsure about what she wants to happen to her attacker. There are times where she wants him thrown in jail, times where she wants him kicked off campus, and times where she only wants him to understand what he did to her so that she can “move on.” In fact, I have had more victims back out when they thought their attacker would be suspended or expelled than I have victims back out because of an uncertain outcome. So how do you advise her?

If she wants him held accountable there are three roads she can take. If she decides to go the criminal route she may be able to get him arrested, thrown in jail, and if the case is successful he may face time in prison. However, she has very little control over what happens in the case, it can take a long time, a victim is often kept out of the loop, and in the type of situation described above many DAs will not prosecute. She could decide to sue him, but this option is expensive and takes even longer. Finally, she could decide to bring him up on campus judicial charges. While this option would  result in a much smaller consequence for the attacker (i.e., even if he’s expelled that’s much better than prison,) but the hearing will likely be confidential, she will be allowed to dictate much of what happens, and she can surround herself by the resources set aside for victims in these cases. That is at least true in good systems. Most importantly, if she chooses to use the campus judicial system she can still decide to use the other two because choosing that option does not in any way prevent her from changing her mind and also using the criminal or civil systems.

I know there are many survivors, victims, and advocates that don’t think the above benefits make the judicial system worth it, and will never accept that the system is “effective.” However, I think “effectiveness” should be defined by how a victim’s desired outcomes are met, and by the level to which a system can avoid revictimization. If you want to look at the systems based on their failures, none of them are “effective.” If you want to look at them by their successes, each of them can be. However, I believe that if you look at them as distinct and often not mutually exclusive options, the campus judicial system has the most potential to be victim-focused, minimize revictimization, and meet the victim’s desired goals to allow her to continue healing.

Of course, that’s only true in good systems.

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 This is a plug. If you do not want to read a plug for services, stop now! We will still adore you.

For the 2013-2014 school year we are going to be offering a victim assistance package to advocacy offices on campus. This will include:

1. Serving as an on-call judicial resource for unlimited complainants for one academic year.
2. Allowing the extent and nature of the assistance to be completely determined by victim and/or the advocate including maintiaining as much anonymity as a victim desires.
3. Helping the victim build the most effective case against the attacker possible.
4. Allowing advocates to exclusively focus on support.
5. Identifying situations that may require outside legal involvement (e.g. a denial of due process, forced mediation, etc.)
6. Reviewing the sexual assault policies, and offering recommendations for improving them.

We are in the process of ironing out the details, but if you want to retain our services we will charge half of what we would charge when these services become publicized in August. For less than the cost of hiring an outside investigator for one case, we will help as many victims as possible build strong judicial cases. We believe this will increase the numbers of cases that are heard, help advocates prove there is a problem on their campus, and by removing much of this responsibility from the advocate it will increase the trust and support between them and the victim. Contact DaveK@CollegeJudicialConsultants.com with any question or to discuss costs.

The Road Confusingly Travelled–how an apple can look like an orange with college student misconduct.

One of the most confusing aspects of the college judicial/disciplinary system is how a college can adjudicate something that is a “crime.” If you’ve ever wondered how a college student can be “convicted” of assault and yet not be in jail, you are not alone. Colleges use terms for policies that are the same (or really close) as the state definition for crimes, and in some instances have the exact same language. That’s inherently confusing and I have known Deans and attorneys that can’t grasp that something can be a violation of a “crime,” and yet not mean that a student broke the law.  Let’s see if I can clear it up.

The venue in which a case is heard and the standard of proof applied are different determine what a person is responsible for. With apologies to my law school professors for the simplification of my explanation, think of the world as broken down into 3 “courts.”

• Criminal court—This is what most people think of when they think “crime.” In this court there are strict rules of evidence, extensive civil liberties, and the “state” brings the case against an individual. The prosecution (the “district attorney” or “DA”) must prove beyond a reasonable doubt that the accused (“defendant”) committed the crime with the necessary intent. This is an incredibly high standard of proof because if the DA is successful the defendant will be denied his or her liberty and will face incarceration. Think of this standard as >95% likely that the defendant did it.
• Civil Court—If you sue someone for wronging you, you do it in civil court. In civil court the injured party/victim (“the plaintiff”) sues the accused person (“the defendant”) looking for a remedy for what he or she believes was damage done to him/her. The basis for this suit has to be among a group of torts (i.e. responsibilities or obligations that the defendant had to the plaintiff that were not met) and must show that the defendant did or did not do something, that action “injured” to the plaintiff, and that injury resulted in damages. The standard here is “clear and convincing” or somewhere around 80%. Once again, there are strict rules of evidence, and an attorney who speaks on their behalf almost always represents both parties. Civil courts can hear torts based on crimes with one of the most known examples being the OJ Simpson case where he was acquitted for a murder charge (i.e. he “didn’t commit” murder) but liable for a wrongful death tort (i.e. his actions lead to the death of two people.)
• Campus judicial hearing—While schools all have a slightly different system, there are similarities that cut across them all. In general, a student (“the respondent”) is accused of violating a school policy by someone (e.g. another student, staff, or professor) called the complainant. All the complainant has to show is that there was a “preponderance of evidence” that the respondent violate a school policy. In other words, the complainant must show that it was more likely than not or >50% that a policy was violated. There are essentially no rules of evidence and in most cases the school’s only due process obligation is to have a system that is inherently fair and to do what they say they are going to do. So if $20,000 goes missing from a student club account, it is possible that the person accused of stealing it will be found not guilty in criminal court, not liable in civil court, but be responsible in a judicial case.

The “wrong” a person does can fall into one or more venues, and here is where it gets really confusing. When a student does something wrong, it is possible that that action can be against policy, a tort, and/or a crime. Without any exception I can think of, anything that would rise to the level of a prosecutable crime will also be against school policy. However, many of the things that are violations of school policy will not be prosecutable crimes even if the violation has the same name and similar elements of a crime.

A good, and fairly non-controversial, example of this is hazing. Almost every school has a “hazing” policy and many of them simply quote state law as their policy. This would imply that if you violate the hazing policy on campus that you’re violating state law, but that isn’t the case. Let’s say a fraternity has their new members (i.e. pledges) go on a scavenger hunt and while that hunt has some embarrassing elements to it, there is no theft, vandalism, forced consumption of alcohol, or injury to anyone. In fact, each pledge says it was the most fun they ever had and ask to do a similar thing again in the future. If you read the hazing law in most jurisdictions this would constitute hazing, but no DA is going to prosecute anyone for it. On campus, however, that fraternity would likely have a hearing and be found responsible for hazing. They might be sanctioned with probation or even a brief suspension for violating that policy. That would mean that they violated the school’s policy on hazing that has the same as the language of the state law, but it does not mean that they violated the law. They were not heard in criminal court, and there probably would not have been a guilty finding even if they were.

Does this make sense? On Friday, I will talk about how this works with the most controversial issue of all, campus sexual assault, and why a student who commits sexual assault on campus did not necessarily commit a crime and why a college campus may be the best place to hear these cases.

Let me know your thoughts or if you think I missed anything, and, for pete’s sake, don’t be afraid to like us on Facebook or follow us on Twitter.

The Disappointing Appeal Process (pt.3)-Fixing the System

The campus judicial system is, as a whole, outstanding. If you consider the tens of thousands of serious cases heard each year, and how few true mistakes are made by a board, there is an effectiveness not seen in most systems. However the systems in place must be transparent and allow all parties to be heard fully heard in every step is inherently unfair regardless of outcome. In order to have a fair appeals process that serves and protects the students, some of all of these changes should be adopted.

1. Completely separate the professional connection between the appeals officer/board and the judicial officer/board. The person or board considering the appeal should have no knowledge of the case prior to reviewing the records and materials for the appeal. If there is a relationship, especially a direct reporting relationship, between the two it is impossible to prevent a respondent from thinking that relationship played a part. It is almost as important that a system seem fair as it is that it be fair.
2. Allow a ground for an inability to prepare an adequate defense for reasons outside of the respondent’s control.  Most students subject to the judicial process are not developmentally or intellectually able to be effective advocates for themselves, and even if they are this is likely their first time having to do this sort of thing. A student should be able to make a case that he or she did not prepare as he or she should have due to a misunderstanding of the complaint, issues raised at the hearing not provided prior to the hearing, etc. A school concerned with reconsidering every board decision could make the remedy for this ground a new hearing rather than a reassessment of responsibility or the sanction.
3. Allow an appeal for all sanctions, and not just the most serious. Most schools maintain records of disciplinary violations for well after a student graduates. If a student feels cheated by the system or if there were gross procedural or other errors, he or she should have the ability to challenge the outcome. In order to limit the appeals to those cases where actual errors or injustice exists, make certain the appeals officer/board can increase the sanction as well to prevent this from being a risk-free way for students to appeal everything.
4. Provide detailed explanations for the finding of responsibility and the sanction in every decision letter. Not only will this allow a student to understand the basis for the decision against him or her, but it will also ensure a more educational process since the board will have to be able to articulate its reasoning vis a vis the violation and the student involved. It will also make it easier to modify a sanction while still maintaining the educational intention if an appeals officer knows the rationale behind  a sanction.
5. Loosen the “new evidence” rule.  Currently most systems limit new evidence to that evidence that was unavailable at the time of the hearing, but to a student going through the judicial process relevant evidence may not be clear until the actual hearing. An easy way to adjust this policy would be defining “new” evidence as it currently is defined, but also allowing evidence not predictably necessary based on the response but that can be shown to have been raised and/or considered at hearing.
6. Make the standard of review the same on appeal as the standard of proof is at hearing. If a respondent can show on appeal that a mistake was made, the review standard should also be preponderance of evidence. If the mistake or error had not been made the respondent would not have had to prove clear and convincingly that they were not responsible so why make them do so now?
7. Remember that ties go to the student. When a finding of responsibility was made because a student just barely crossed the threshold of more likely than not, the sanction should reflect that level of responsibility. In other words, someone 100% responsible should not ever have the same sanction as someone 51% responsible. If on appeal the decision is too close to call, you should find in favor of the respondent.
8. Allow students to appeal sanctions no matter what system was used to give that sanction. Many schools have administrative hearings/meetings where students are given the option of accepting responsibility and getting a sanction, but the student almost always must waive his or her right to appeal. This is patently unfair since the student does not have the experience or understanding to grasp the impact of a particular sanction. I have had many clients who accepted a “plea” because they were told that they would get worse at a hearing. If you tell an 18 year old that he could get suspended if he doesn’t accept probation, it would take a highly developed 18 year old to risk a hearing, no matter his responsibility.
9. Any questions asked of one party or the judicial officer while considering an appeal should be shared with the other party. It is simply unfair to have someone be able to respond to a claim without allowing the other party to hear that response.
10. Allow suspended students and groups to petition for earlier readmission. For some students and especially some student organizations, the growth and development a board wanted may be accomplished in less time than initially thought. There should be a way for a student to petition for reconsideration during a suspension. I imagine this will be a hard case to make for the suspended student, but it should be possible.

What do you think? Are there other things that could make the process more transparent and ensure that students are given every chance to defend themselves?

The Disappointing Appeal Process (pt.2)-Systemic Unfairness

[Apologies for the lateness of this post. I had issues with scheduling, and decided that I would rather wait until today to post it than post on the weekend. Also, this one is LONG.]

 

When you’re a student or Greek organization and you’ve been sanctioned with suspension or worse, your last hope is the appeal. If you can manage to find an argument within the very limited grounds of most systems that should result in reconsideration, it is still highly unlikely that you will be successful. There are reasons simply due to flaws within the systems, but those flaws do not influence the outcome in the majority of cases. The reasons why many appeals fail are simple:

1. The respondent did it. If you did something wrong and you had a fair hearing, you were probably found responsible and sanctioned accordingly. The reason your appeal failed is because the outcome was not influenced by anything other than your actions. Accountability isn’t unfair.
2. The respondent’s case was weak. It is possible that you did not do something or that you did not do everything for which you were found responsible, but you presented a bad case to the judicial board. The appeal is not there to give you a chance to make a better case so if you make mistakes in the hearing you are stuck with those mistakes. (This is the #1 reason why we want you to work with us before your initial hearing.)
3. The sanction, while harsh to you, is fair in the context of the judicial system. There is no student that will be sent home for a semester or year and not think that the sanction was “harsh,” but the fact that there is a big impact on your present and future plans does not (necessarily) mean a sanction is excessive.

That being said, there are systems where an appeal is doomed to failure that have nothing to do with the “legitimate” reasons listed above.  While I hope (and still believe) that most schools are free from these flaws, I have found some or all of them more frequently than I would have thought.

1. The decision letter does not offer sufficient explanation for the rationale and/or the sanction. The judicial system is supposed to be educational, but there are many judicial administrators who keep the sanction letter language minimal. There are many reasons for this, but without sufficient explanation for the decision it is almost impossible for a respondent to understand how a procedural error may have affected his case, whether all evidence was considered and applied correctly, or whether the sanctioning decision was reasonable in light of what was decided. Even worse, I have seen cases where the ambiguity of the decision letter caused the respondent’s appeal to be dismissed without evidence because the respondent was forced to supply an informed guess on the process that was simply negated by the hearing administrator or Chair. Even if their denials were true (and in some cases I know they were not) it leaves the respondent with an overwhelming sense of unfairness and lack of transparency that should be avoided.
2. The appeals officer is in same division as the judicial officer, and often a direct superior. I have full faith in the ability of almost every student affairs administrator to be impartial and professional, but having such a direct link is patently unfair for everyone. If the Assistant Dean responsible for running a system and delivering a decision has that decision reconsidered on appeal by the Dean, how is a student to believe and have faith that the professional relationship had no bearing on the outcome? As someone who knows the type of communication that happens within a division (e.g. “critical students” meetings, on-call professional meetings, etc.) there is good reason to doubt the impartiality and fairness.

If there is a case with a potential outcome of suspension it is highly unlikely that the case was not discussed between the judicial officer and her superior prior to the actual hearing, and the outcome was most likely shared immediately after the hearing. What’s more, if there was a suspension or expulsion the respondent’s case was shared with other offices in order to plan for that student’s departure, and many of those offices are under the same umbrella. When the appeal gets to that superior, she has likely already considered the issues and has a position that consciously or subconsciously influences her analysis.

3. There is a belief that overturning a board decision either undermines or fails to support the board, and the students and/or faculty on that board. Serving on a judicial board is an incredibly difficult and thankless job, especially for students. Being a student that hears a case against another student (especially if you identify with the respondent in any way), makes a finding of responsibility, and then suspends or expels requires a level of personal development most “adults” don’t have. In addition, the judicial officer has worked with the board and has a strong personal relationship with them. When a respondent appeals the decision, the judicial officer often approaches that appeal from the initial position of wanting to “support” the board, and while understandable, it is an unfair approach. The Board should be trained to understand that their decisions cannot be personal, and therefore modification or reversals of that decision are also not personal. I have seen firsthand the frustrated response of hearing boards that have their decisions changed, but those feelings must not be part of an appeals officer’s considerations.

4. A higher standard is used in reviewing a board’s decisions no matter how close to the “than not” part of “more likely than not” the board’s decisions were. I know that’s a mouthful, but bear with me. On appeal, if a respondent can argue the findings of fact, the hearing officer almost always needs “clear and convincing” evidence that the finding was wrong. If a 5 person judicial board decides in a 3-2 vote that it is “more likely than not that a student stalked his ex- and one of the 3 was “barely” convinced, that decision is treated the same on appeal as if all 5 decided that he definitely did it. So if a hearing board (cumulatively) thought is was 51% likely a student did something or 99% likely, the same standard is used to decide whether they made a mistake. While one would like to think that there are not many cases where 51% likelihood would result in suspension or expulsion, that isn’t the case-especially in Greek misconduct cases or if the respondent has priors.

5. When considering an appeal, the person referred to for clarification is usually the one who made the initial decision. A respondent will raise many issues on appeal, and most of them will directly challenge a finding or make assumptions based on the outcome. If the case file isn’t sufficient to decide on those claims, the appellate officer must look somewhere for clarification, and that place is almost always the judicial administrator that oversees the system and/or the Chair of the judicial board. It is unlikely that their response will be one that supports the claim on appeal, because if they believed a mistake was being made or their actions were unfair they would not have done them.

6. The appellate body, either due to their own feelings or based on legal counsel’s advice, believes that an admission of error makes them more susceptible to litigation. While this is almost impossible to prove, I believe it to be true. Imagine a student that has been falsely accused of academic misconduct by a well-intended professor. At some point during the semester his professor has informed him that he cheated, and is failing the assignment and/or class and that the case will be referred to judicial affairs. Sometime later (days or weeks) he is called into the judicial affairs office where the case is explained, and he is told that he may be suspended if he is found responsible. He then scrambles to develop a response to these allegations to show his innocence, usually within one or 2 weeks of that meeting. A hearing is scheduled at the next opportunity, and the respondent has to plea his case to a board of strangers who are weighing his word against the professor’s who has an implicit authority and “no reason to lie.” Sometime in the next week he gets the decision telling him he’s suspended. He has a week to write an appeal, and sometime in the next 1-2 weeks he will get a decision. The whole time he’s stressed, anxious, and depressed. If the appeal goes his way he has still spent at least a month with major impacts on his life and his ability to be successful. Even worse, in many systems even finding him not responsible is not enough to change the professors decision regarding the grade, and even if it were the student has likely dropped the class or stopped going since the grade was predetermined. If the class is one that he needs to graduate on time this process, even if he’s found not responsible, has impacted his ability to graduate on time. If the appeals officer finds that there was a major procedural error or that there were other errors, that student has ammunition for a claim. The worse the mistake, the more the pressure to support the decision can be.

I want to reiterate that the reason most appeals do not “win” is because of the actual facts around a case, the respondent’ actions, and the sanction. Even where the other factors exist, I do not believe that most people are knowingly and intentionally participating in an unfair process. However, it is crucial that a school examine its appeals process, identify any obstacles to impartial consideration, remove any factors that can reasonably be seen as unfair or that impact transparency, and that students have a clear understanding of what goes into the decision making. Identifying and disclosing factors a respondent may object to is much better than leaving that same respondent believing that he was a victim of an unfair system.

What do you think? Are there other factors that influence a decision, or am I completely off base?

Coming up: Steps to improve the fairness of the appeals process that support the parties and the system itself.