College Judicial Consultants

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

Archive for the category “College discipline”

An Easy Solution to the Innocence Problem

quote-it-is-better-that-ten-guilty-persons-escape-than-that-one-innocent-suffer-william-blackstone-211382College 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.

the-shawshank-redemption-32I 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

Dartmouth

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

mgid-uma-content-mtv.com-1563423and 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 21baruch-cityroom-blog480-v2not 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.

 ______________________________________________________________________________________________

 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.Choose-a-path

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 orProduce - apples and oranges woman 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.explanation-i-demand-one
  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.]

unfair

 

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. No infoThe 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 facebook_861744770-787913admission 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.

Year in Review: The Disappointing Appeal Process (pt.1)–Background

[As this year wraps up, I thought it would be worth talking about some of the good things and bad things I’ve noticed that cut across all systems.]

All college discipline systems have an appeals process that is meant to protect the rights of the respondents. In theory, these are the checks on the authority of the judicial boards that can suspend or expel a student. Since the judicial boards have so much power, the appeals process is meant to ensure that a student was not sanctioned unfairly or against policy. If you’re a student or a Greek organization and you go through the judicial process (“respondent”) and get a sanction you think is unfair or you feel you were denied a fair hearing, you can appeal that decision to a “higher” administrator authority. The idea behind this is a good one—while the boards are very well trained and successfully make dozens of hard decision each year, occasionally there might be a mistake that unjustly impacts a respondent. The appeals process makes sure that these mistakes are corrected and that the “right” result is ensured.

Unfortunately, in most systems the appeals process is merely a false hope offered to respondents, and their actual chance of changing a board’s decision is nil.

Sisyphus

Almost without exception, the appeal is not a rehearing of the case. Since the board heard the case and was in the best position to make decisions of fact, the de facto position is that their conclusions are “true” unless some “mistake”  happened to make their conclusions incorrect. As a rule of thumb, even though a judicial board uses the “preponderance of evidence” standard when deciding facts, a higher standard is used when deciding if those facts are reasonable. (More on that later.) Even more importantly, almost no system allows you to directly attack the board’s findings so you must use a different ground to get to a place where your dispute will be considered-something beyond the ability of almost all students. There are only a few grounds a respondent can use in an appeal (and most schools have some combination of these, although they may be worded differently):

  1. New evidence that was not available during the hearing, but which could/would have changed the outcome—This is an almost impossible standard. It does not mean that there was something a respondent could have presented but chose not to and it does not mean that there was something that they could have found but didn’t. It means literally that something came to light after the hearing that would have been used if it was found before the hearing, and that it was not discoverable prior. (Some systems have a looser interpretation, but this is the common one.) Not only that, but it needs to be different from the other evidence that was presented in order to potentially have changed the outcome.
  2. A procedural error which affected the outcome—This is a two part check. It is not enough that a procedural mistake was made, but that mistake needs to be serious enough that it resulted in a decision that would have been different if it was not made. Since a judicial administrator’s job is to make certain that these types of errors do not occur, these are rarely winners. (This ground is usually a way to argue the facts, but the appeals officer has to agree that there was a violation or she will just dismiss the argument without consideration.)
  3. A misinterpretation or incorrect use of policy—This is less commonly used, but it essentially means that there was a charge that, when applying the facts as the board found them, should not have resulted in responsibility.
  4. The sanction is too severe for the violations—This is where most students couch their appeal because to them this one is both true and understandable. A respondent may not understand what the policy for disdog-chasing-its-tail11puting the impartiality of a board member is and whether or not there was a mistake, but she knows that being suspended for a year is severe. The mistake they make is that in order to win on this ground, the sanction given has to be more severe than the acceptable range for these violations. This does not mean that the appeals officer thinks that the sanction should havebeen lighter, but that the sanction given was not within an acceptable range of potential sanctions. Since most violations that could result in a suspension for a semester could, in theory, result in expulsion this is deceptively difficult.

The problem is not the difficulty of an appeal, but that the system is set up to make it virtually impossible to make a successful argument. On Friday I will discuss why the appeals process is essentially “fixed” to work against the respondent, and next week I will offer some suggestions on how to make it fairer.

Am I missing something significant? Please feel free to comment and correct me, but if you are a judicial officer I ask that you include your appeals statistics for cases that resulted in suspension or expulsion.

No blog today, instead we have questions

As the school year winds down, we are wrapping things up here as well so there is no new blog today. Instead I have a few questions that I would love you to answer.

 

1. If you have ever been in disciplinary trouble at school, how helpful were the resources the school provided?

2. If you, your fraternity, or sorority got in trouble this year why did you choose not to get help?

As always you can answer in the comments or email me directly, Davek@collegejudicialconsultants.com.

Be good and have a good weekend!

 

 

 

A Surgeon With a Scalpel–Disciplinary Sanctions in College Judicial Cases pt. 2

 tumblr_m3cyy1gdRF1qm6sfao1_500

 

(Click here for part 1)

When you do a “small” wrong (e.g. underage drinking) or something very large (e.g. sexual assault) the system works more often than it doesn’t. It is for the cases in between that it frequently fails. The biggest reason for this failure is that while many schools put systems in place to help students when they stumble, those systems cannot or do not help students when they fall.

When you take a class, if you do the work to the best of your ability and attend class they do not kick you out for failing a quiz. The professor (hopefully) will talk to you about office hours, the TA, academic support centers, and other resources that can help you because the fact that you’re willing to work matters. Even if those support systems do not work and you fail the class, chances are that work ethic will mean that you do well in enough of your other classes to stay off academic probation or fail out. Most schools even allow you to take the class you fail over again and have that grade either substitute for or counterbalance the initial failure.

While I believe student affairs is an academic discipline, the systems are not as forgiving for developmental and behavioral failures. Judicial administrators may (correctly) claim that their system “works” because it does in most cases, but I believe it fails in roughly 5% of the cases. While a school may argue that a 95% success rate is good (and organizationally it might be) if you’re those 5 students in 100 who are affected by the flaws, the system is unfair. There are several reasons the systems fall short:

  • All judicial systems are complaint based, and as a result you are punished for being caught and who caught you at least as much as for what you did.
  • The actions that bring a student in front of a judicial board are viewed as negative and against community values in a way that academic failure is not. If you get caught smoking marijuana and playing Call of Duty in the residence hall on a Thursday afternoon, the school responds as you have betrayed all values and community expectations. The idea that you can be a leader, do well academically, and still choose to violate certain rules is not one that’s embraced or even discussed.So no matter what else you do, you will be held accountable for that singular act of misconduct the same way the kid who only plays call of duty and smokes weed will be.

Developmentally, these three do not need the same sanction.

  • Colleges do not have the resources to provide the educational response necessary to correct a student’s behavior. Even at schools with large mental health departments, doing the type of work necessary to help a student through an alcohol or drug addiction is often impossible. Many schools refer students to outside resources to address this, but many more simply do not have those community resources available and thus send the student “home” to have the work done.
  • Many schools have mandatory sanctions. There is absolutely nothing educational about mandatory sanctions, and if someone tries to pretend there is they’re wrong. Sometimes these “mandatory” sanctions mean that each violation (no matter the circumstances) results in a more severe penalty–essentially creating a “three strikes” policy. Again, this problem does not make a system inefficient or mean that it can’t reach the right result, but even when it succeeds, that success is more luck than pedagogy.
  • Judicial boards are  trained to be effective, not to find people not responsible. Most judicial board training is on the types of questions to ask, getting them to accept the responsibilities of the position, and helping them understand the more liberal evidentiary policies. I fully believe in the preponderance of evidence standard, but it is not a forgiving standard if the person applying it is looking to answer “is it more likely than not the respondent did it” rather than “is it more likely than not the respondent did NOT do it.”
  • It is developmentally inappropriate to expect students to be able to articulate their response in high stress situations. I tell my clients not to lie, but when the truth will definitively be held against them it is hard for many students to understand how honesty is rewarded. If a respondent cannot or does not feel he or she can accept responsibility and explain the reasons, a board will not have the information it needs to sanction in a way that educates and rehabilitates.

Doing programs and talking to students without addiction issues about moderation is easy. Punishing students overwhelmed by their lives who feel trapped and take academic shortcuts is easy.  The hard part, and the part that separates educators from enforcers, is in being able to do the easy work consistently and well while also being able to do the hard stuff. 99% of the student affairs professionals I know could do that work and want to do it, but they need the resources and support to do so. If a school will not provide those resources then it needs to be straightforward and tell their prospective students that no matter who they are and what their reasons, if certain mistakes are made they will be abandoned and cut off from the community.

Are you a judicial administrator with a different opinion? Are you a student who felt unheard through the judicial process? Let me know either in the comments or email me at davek@collegejudicialconsultants.com.

Have a great weekend, and be good.

A Surgeon With a Scalpel–Disciplinary Sanctions in College Judicial Cases pt. 1

When there is a judicial hearing, the judicial body performs a two-step process. First, they must determine whether the respondent (i.e. person or group accused) is responsible (i.e. “guilty.”) Then, if the respondent is responsible, the second step is deciding what sanction (i.e. punishment) should be given. I spend most of my time working with clients on the second step since if the respondent has actually done something “wrong” it is almost not worth the time to try and prove that he/she/they are not “responsible” since the standard of proof is almost always “preponderance of the evidence” (i.e. more likely than not.) As long as there is a negligible enough amount “evidence” more than a coin toss to show that the respondent is responsible (and there usually is) then the real goal is to provide the hearing body with the information it needs to justify the lowest sanction possible considering the violation. While this is neat in theory, it becomes much trickier to do in practice because the systems are not set up to be nuanced in the way they would need to be to truly be educational. While the judicial body and judicial administrators take the heat for this, it is not (usually) their fault. It is because in most cases they do not have the tools, systems, or support to sanction effectively.

Since this is going to be a busy time for judicial offices (and thus students) I thought it was worth explaining the sanctioning process to help people understand what may be happening, why they may seem more punitive than educational, and finally what can be done to fix it. Since that would be a super long blog I’m going to do the first part today and the rest on Friday. If you have any thoughts/questions before that post let me know and I’ll try to incorporate them.

Almost all judicial systems have (at most) 4 categories of sanctions-warning, probation, suspension, and expulsion.

  • Warning (a.k.a. disciplinary warning, disciplinary notice, informal probation, etc.)—This level usually means “you did something small you shouldn’t have, and don’t do it again.” It puts you on the radar, but should have essentially no impact on you.
  •  Probation (a.k.a. disciplinary probation, formal probation, change of student standing, etc.)—This is a more formal sanction that usually makes a notation on your record to put others who access that record on notice, usually a notation on your internal and/or external transcripts. This may stop you from being able to obtain certain positions on campus (resident assistant, orientation leader, student government office, etc.), but it is not meant to severely interfere with your ability to successfully continue with the complete student experience. If you stay out of trouble, the probation will go away eventually, the notation is usually removed, and you can move on with your life.
  • Suspension (a.k.a. holy crap, what am I going to tell my parents!)—This is a non-voluntary separation from the college or university for a defined period of time, usually between one semester and two years. While schools may say that returning is “conditional” they usually allow a person back after the suspension period is over. Some students decide to transfer, but being on suspension may limit the schools to which they can be admitted.
  • Expulsion (a.k.a. “this is probably the least of my worries.”)—This is forced permanent separation from the college or university with no possibility of return for that degree or any degree in the future (usually.)

In addition, there are “educational” sanctions that can be included as part of any decision. These include reflective essays, mandated counseling (although most counselors I know hate this,) community service hours, and other activities meant to inform a student about the impact of a violation, give him/her the tools to make better decisions in the future, and/or “restore” the larger community.

In theory these levels make sense—smoking cigarettes in a stairwell should not be treated the same as habitual plagiarism. I have already talked about how I think suspension is antithetical to the judicial process as an educational tool, since taking a respondent out of the campus community limits the type of education and oversight you can provide. However, the judicial administrators and hearing bodies did not cause this problem. Most judicial administrators I know really want the process to rehabilitate and enable the respondent to have success in the future. The problem is that with the more serious violations, the judicial administrator (who I would like to call “judicial educator”) needs a scalpel to carefully cut away a respondent’s developmental and personal failings that lead to the more serious violations, but all they have are the awkward clubs—suspension and expulsion.

If you have any questions or suggestions you possibly want considered in Friday’s conclusion, leave a comment or email me at DaveK@CollegeJudicialConsultants.com. Be good.

 

Post Navigation

%d bloggers like this: