More on fairness (i.e. why I’m not talking to you in particular.)
Some former colleagues of mine (who shall remain nameless) wrote me about my last blog because they thought I was insulting judicial systems as a whole, and they took offense at what they thought was my aggressive tone. I went back and forth with them for a while, but it quickly became clear that they could not separate themselves from their systems. They also could not understand how a system where the participants are not representing themselves to the best of their ability is inherently unfair; a fact I found particularly troubling. I don’t think most administrators (and certainly not the ones I know) try to be unfair, but it’s inevitable the way things are.
I am obsessed with fairness. I started College Judicial Consultants because I realized when students were either accused of something or wanted to hold other students accountable within the judicial system that the ancillary issues to the actual hearing made the process unfair no matter what I, or any other judicial officer, did. I had the privilege of working with an amazing disciplinary committee filled with dedicated and compassionate people who were extensively trained by a devilishly handsome judicial professional. They were thoughtful, took their time, and tried to understand each student who came before them. In short, they were the best any student brought before them could have hoped for. That being said, at least one out of every three students who came before them (estimated) was unable to either defend him/herself adequately, focused on the wrong issues, or made other completely understandable mistakes that either made or could have made the outcome completely unfair. The committee is not to blame, but the truth is what they were being held accountable for and the extent to which they were accountable were not solely based on the incident. This was even truer those times when one student accused another student of something. Most of these cases were sexual assault cases and the victim bringing the charges had to not only get past her own issues during the case and revictimize herself, but she also had to overcome sexual and gender issues of the people who listened. Again, the committee was excellent, but very few of us truly understand our subconscious beliefs enough to identify them and not let them influence our decision. (That’s a whole other issue that I’ll discuss later, so I’m really going to focus on respondents here.)
This is not unique to discipline systems. Look at America’s courts. If every person who went to criminal or civil court had the exact same amount of money and the exact same quality of attorney, our system would be as close to perfect as it could be. A corporation could not outspend you, a clever defense attorney couldn’t say, “if it doesn’t fit, you must acquit” and get you off the hook for brutally murdering 2 people, you wouldn’t be executed if you were clinically dysfunctional, etc. The facts of a particular case and all relevant details surrounding them would be the basis for the outcome, and I will take that system every time. But that’s not the case so the poor, the uneducated, and the subordinated groups (i.e. those without equal access to power and privilege; the “oppressed”) face greater incarceration, have less effective legal defense of their rights, and are victims of unfair systems much more than their privileged counterparts.
The same is true in judicial cases. An accused student in a disciplinary case is almost always accused by someone with more inherent authority than them, whether it the appointed authority of an RA or the positional authority of a dean or professor. They almost always have less knowledge of the subject in contention than the person accusing them so defending themselves is an uphill battle. (See my earlier blog on fairness for more discussion on this.) They do not know the system as well as the person accusing them since it is almost always their first time in that system where the person accusing them has either been trained in the system, has accused other people, or can call on colleagues with greater institutional memory to help them navigate the system. Perhaps worst of all, they are compromised by the stress of the hearing, the potential implications of being found responsible, the shame that comes with being accused, and the fear of failing and having to face everyone you know. That agitated state can make them seem cold, distant, and dishonest when they could simply be scared, and that influences a committee’s decision-making. It’s not intentional, it’s not personal, and it’s not a reflection on the ethics of any individuals; but it is unfair.
People may not be as concerned with fairness as I am, and that’s not necessarily because they are trying to be unfair. When I ran a system I had to be concerned about procedural consistency, legality, regulatory compliance, institutional commitments, departmental support (or lack thereof), and messaging as well as fairness. I did the best I could, and I believe others do the best they can, but many of those “goals” conflict with fairness as it relates to the individual going through the system. (e.g. I could not point out where the committee may have made a mistake during an appeal.) Fairness does not mean that people in the system get what they want, but it should they get what they deserve and for the right reasons.
I don’t think any system can empower the students in the disciplinary process for many reasons and those reasons are almost never about the competency and professionalism of the administration. That’s why I created College Judicial Consultants-to help respondents and complainants have the outcome be fair. In CJC we can take all the time a client needs to help them because that is what we do, and all that we do. We have no professional conflicts that limit our ability to assist a student to the extent they need, and college judicial systems do. We say we give people their “best chance for the best result” and what that really means is the best chance for a fair result.
That’s not personal. That’s fact.