College Judicial Consultants

Information on college, conduct, Greek life, advocacy, and fairness-published every Tuesday and Friday morning.

Insecurity and the Appeals Process in Judicial Cases

ImageWhen I was working in student affairs I believed, and told people working on student issues, that there were two types of situations that were the hardest for me.  The first was when someone I truly cared about did something wrong and had to be held accountable.  The second was when someone I didn’t like didn’t do anything wrong, and therefore could not be held accountable.  The first one is pretty obvious, but let me explain the second.

Administrators and faculty are usually experts in their field with extensive education, training, and experience that gives them the right to the positions they hold.  They’re also human.  That means that they think some people are great, some are brilliant, some are weird, and some are just plain jerks.  A mark of a professional is when their personal feelings are almost impossible to find.  I used to say that I was happy if both parties to a dispute though I was on their side or that I hated them, but I failed if only one felt either way. I meant that.  I would see people at their personal and interpersonal lowest, and the last thing they needed was the person they were forced to see (me) judging them.

The problem is that we all have bad days, hot button issues, and egos.  My hot button is when people are accused of sexual assault try to blame the victim, and when it happened it really made me want to launch into someone. However, even on those rare occasions I was paid to get over it and keep it to myself.  What I could do, and the only thing I SHOULD have done, was make sure that everything was in place for that person to go through our process and get the result he should.  That meant making sure he understood everything, that all the procedures were followed, and that there was no bias so that he could have no basis to dispute the outcome.  I might be able to “stack the deck” a little by selecting certain people to be on the hearing board, but for the most part the best I could do to get the outcome I wanted was make sure the people who make the decisions were properly trained and did the right thing.  In other words, when I didn’t like someone or I personally wanted a particular outcome, the most ethical thing I could do was make sure everything was as fair as possible, and hope for the result I wanted.  Unfortunately, that didn’t always work.

A judicial board hearing is an unreliable thing only if you’re looking for a particular outcome.  While “preponderance of the evidence” seems like a pretty low standard of proof (especially if you’re going through the hearing), I have found that boards are not likely to find someone responsible for an egregious violation (e.g. rape or sexual assault,) or for violations that would have a harsh sanction (e.g. suspension or expulsion) if the person is only a little “more likely than not” responsible.  I have actually debriefed with board members who told me that they thought someone likely did something, but that they weren’t sure enough to “end his career.”  Those conversations made me want to grow hair so I could pull it out, but I did the only thing I could and got over it before the next case.

Not everyone can or will move on.  There are people who are amazing professionals, but only as long as things go their way or they like the student in question. Once they have a student or a group they dislike, however, they become vested in the outcome and, consciously or unconsciously, do things to shape the outcome.  I believe that once a person responsible for impartial advocacy students (i.e. all athletes if you’re in athletics, or even the “party” fraternities if you’re in Greek life) then they have to maintain that advocacy no matter who’s involved.  That means if your favorite person says your least favorite person beat them up that an administrator MUST set aside her feelings and give both students the exact same access to the system and the exact same support.  If and administrator cannot do that, then it is her obligation to step aside, or take the proper steps to ensure that things remain fair.  A surprisingly large amount of people will not do that.

There are administrators and faculty who will definitely take steps to ensure that someone or a group they dislike gets “punished” more than others would.  That could meant that they bring charges against someone for something that they would otherwise let go, that they contact the people responsible for the discipline process (or that person’s boss) to make certain that they understand how “serious” they find the situation, or that they even try to influence the board directly to get an outcome they want.  Even in those cases, however, there are usually procedures in place that should protect a student or group from someone’s unethical behavior.

In almost every system there is an appeals process that is supposed to weed out unfairness, correct mistakes that come from someone’s accidental or intentional mistakes, and ensure that a student’s, or group’s, rights were protected throughout.  While that is great in theory, there are several problems with the appeal process as a fairness safeguard:

  1. The standard of review is a lot higher.  This is a little tricky to explain, but essentially the standard for determining whether or not a board or hearing officer made a mistake is higher than the “more likely or not” standard in a hearing.  So even if an appellate group thinks that there is a mistake, that mistake usually needs to be provable to a “clear and convincing” standard (i.e. 80ish percent.)
  2. There is usually a connection between the hearing board and appellate group that impacts the decision of the appellate group.  Usually the appellate group consists of someone one or more steps up on a hierarchy (e.g. if an undergraduate hearing board hears the first case, then administrators hear the appeal; if the Director hears the case, the Dean hears the appeal; etc.)  Worse, this “next step” frequently supervises the person involved in making the mistakes in the first place.  In some cases, this means that to them finding a mistake in the initial decision means that they themselves made a mistake. The more insecure the person (and, unfortunately, many administrators are very insecure) the less likely they will do anything that make them seem “wrong.” Worse, the same person hearing the appeal often had extensive discussions about the case as it was happening and has an opinion regarding it before they read a single fact on appeal.
  3. Sometimes the appellate group knows much less about the process, and therefore takes the opinions of the very people alleged to have made mistakes to help them make decisions.
  4. The appellate group, since most cases that get appealed are “serious” and/or “controversial,” not only considers the case, but also thinks about implications for the school if the student or group sues.  This means that they are much less likely to admit mistakes that could be used against the school than they would if they did not have to consider such things.
  5. Some people are incapable of understanding that a group can be both “responsible” for something and also have had their rights violated, with that violation making the decision unfair.  In other words, once an appellate group decides that the person or group appealing “did it,” then they give much less consideration to any claims of unfairness or violations of rights than they would without that belief.

Unfortunately, I don’t have a solution for these problems.  If you’re in a private school the “due process” owed to you is essentially that the school does what it says it will in its description of the process.  Any school worth its salt will write the process in a way that gives them enough discretion to save them from a law suit, so that route will not likely work in the long run.  Besides, law suits are slow and costly, and any damage done by a decision is likely to be felt before any case is concluded.

Even though I do not have a solution I do have a suggestion, an operating principle, that will help mitigate some of the human and systemic error that occurs:  make all decisions with all “ties” going to the accused party.  A system must be fair and impartial, or else it becomes a kangaroo court meant to punish rather than an educational system meant to uphold values and expectations.  If a person or group cannot be found responsible in a fair system where the only burden is that they “more likely than not” did something, then they should not be found responsible.  If you don’t allow a witness, if you violate the time proscriptions on submitting documents, or you do not allow someone to fully participate in the process the way the rules intend, then those actions CANNOT result in an outcome that would not occur without them.  If it does, you system is unfair, and no appeals process will save it.

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