College Judicial Consultants

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Archive for the category “College hearings”

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.

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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.]

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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.

How to Fix The College Discipline System for Sexual Assault Cases

NYT article

Click here for the NYT article on the issues at Swarthmore and Occidental.

Colleges and universities are under scrutiny their (mis)handling of sexual assault and interpersonal violence (IPV) cases. High profile schools are being investigated for violating victims’ rights, while at the same time there is a growing movement advocating for increasing the rights and protections of the accused. There have been calls from both sides to take these cases out of the college judicial process and leave it to the courts, but all that will do is take options away from the victim and result in even fewer perpetrators facing accountability.

Both sides are correct—colleges are not equipped to handle these cases. However, it is not because the judicial systems are inherent flawed or a lack of awareness by the people involved—it is because it is impossible to have a system  fair to both parties when the people responsible for the different aspects of the case have other interests and responsibilities. To ensure the disciplinary process is followed and fair, a school should hire outside entities to handle the three major components of a case, and allow the college administrators to focus on their responsibilities.

By necessity there will be oversimplification of the issues to make this piece’s length manageable, but I am operating under several assumptions:

  1. Judicial administrators (JAs) and board members want to have a fair system that reaches the right result and do not intentionally revictimize or perpetuate rape myths.
  2. The college judicial system is the lowest barrier accountability system available to victims.
  3. Colleges have dedicated professionals in place to assist victims of interpersonal violence through the process as their only or primary responsibility. (This is more rare than the assumption suggests.)

(In addition, I am only discussing student on student IPV cases and will be gender normative-using “she/her” for victims and “he/him” for perpetrators even though I recognize that these roles are not absolute.)

There are four essential components to any case: the case preparation for each side, the investigation, and the hearing. Each requires a rigid activist committed to the perfect execution of their responsibilities in order for them to be successful. However, each of those by necessity encroaches on the other components.

A victim will have to answer questions she does not want to answer to aid in an investigation, a respondent may be moved or transferred out of a class to protect the victim, the opportunity to confront the accuser by definition hurts the victim, etc.

A victim will have to answer questions she does not want to answer to aid in an investigation, a respondent may be moved or transferred out of a class to protect the victim, the opportunity to confront the accuser by definition hurts the victim, etc.

For that reason, there should be 3 professionals exclusively dedicated to these components without regard or responsibility for the other 2, but with a good relationship with each other in order to assure equal advocacy, transparency and fairness. The JA should “only” be responsible for ensuring due process is followed at a hearing, and that each of the three advocates are engaged in a timely manner. While the JA might be able to assume an additional responsibility (and currently may do all of them,) the only way the JA can be responsible for ensuring fairness and due process is if there is someone else who can fully advocate for each side without concern for the other or for the school’s liability.

Simply put, it is impossible for a school to reduce or eliminate its liability in these cases without outsourcing the advocacy and investigatory responsibilities. As long as an “agent” of the school is working with one side in preparing a case, the school remains at risk of liability from the other side. Schools know this, so even victim advocates are pressured to limit their work to connecting victims with resources and, in the best systems, advocating for “one-sided” accommodations. The advocate may also provide excellent advice in preparing the case, but he or she does so knowing that if the respondent sues that assistance may be used against the school. The victim and respondent advisora needs to be separate from the university, intimately familiar with the college judicial process, and have a good and open relationship with the support resources on campus.

Providing equal and external assistance is crucial since the basis of most claims against a college is “inequitable resources” that resulted in an outcome that breached the school’s duty of care. It is also important that the “outsourced” group not be attorneys and/or not be acting as an attorney to prevent the process from becoming de facto litigation. The judicial process is not a legal process and while these resources will help the parties prepare their cases, get ready for the hearings, and protect their rights and interests it will remain up to the students to present their cases through whatever system is in place.

The last component necessary to increase the fairness is a competent external investigator for each allegation that can interview the parties involved, meet with witnesses, ensure that all evidence is collected, and then prepare a report on those findings to help the parties prepare their statements and/or the board reach a decision. There are some schools, like Harvard, that have been doing this (or something similar) for years, but it is prohibitively expensive for most schools. I believe it is possible to have someone responsible for those investigations that can do them at a much lower cost (and have a few suggestions) but expecting students to gather all that information impartially and without exerting pressure on the people interviewed is unreasonable (and developmentally inappropriate.)

Engaging these outside entities will increase the likelihood that the parties will be able to present their positions fully and clearly, that as much information as possible will be available to get as close to truth and fairness as possible, and limit a school’s liability and giving them clean hands. It would be naïve to ignore the additional costs a school would bear to provide these resources, but compared to the positive impact for the students and the reduction in the liability, the costs would be well worth it.

What do you think? Are schools equipped to help each party prepare adequately while still protecting themselves? Are there other (and better) ways to approach this? Leave a comment or email me at (DaveK@collegejudicialconsultants.com). Be good and be safe.

Your Argument is Wrong, Ms. Grossman–The Realities of Sexual Assault Cases in College

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Click here for the Wall Street Journal Article

On April 17, Judith Grossman wrote an editorial for the Wall Street Journal describing her son’s experience with his school’s judicial system in a sexual assault case. In the article she raises some concerns about the judicial process that should be explored (and I’ll do that in Tuesday’s blog) but those points get lost because she uses straw man arguments (understandably motivated by a mother’s outrage), incorrectly states the problems, and misses the entire point of sexual assault cases on college campuses.

Sexual assault cases on a college campus are different than other types of judicial cases:

  1. Most sexual assaults between students involve a pre-existing relationship and alcohol. A victim being an “ex-lover” is not evidence in favor of accused students. In fact, predators rely on the idea that past relationships mean sexual assault did not happen, and develop these relationships prior to committing sexual assault to allow for that defense. The issue is was there consent in that particular instance. Nothing else matters.
  2. Most victims of sexual assault on a college campus do not bring cases against their attackers. Among the myriad reasons are the facts that they feel as if nobody will believe them, that they are somehow to blame (they aren’t), and that if the attacker is found not responsible that somehow means it didn’t happen. Ms. Grossman labels herself a “feminist,” but the only point of that characterization I can see is to somehow give credibility to her victim-blaming tone throughout the piece. While I do not blame her for writing as a mother, Ms. Grossman willfully ignores the overwhelming pressure against victims. This includes the very real and well-documented academic, social, and personal impact of sexual assault and the overwhelming percentages of victims that suffer in silence fearing the exact type of response in the piece.
  3. Victims that come forward and hold their attackers accountable have been shown by the FBI and DOJ to be presenting “false” accusations only 2% of the time. Even assuming Ms. Grossman’s son was victim of the incredibly rare 2%, when a victim comes forward and has the courage to see the process through the smart money is on it being true. Her characterization of this woman as a “spurned ex-lover lashing out” is dangerous because it has the very real possibility of preventing future victims from coming forward for fear that they will be classified in the same way.
  4. Title IX and the Office of Civil Rights did not eliminate the presumption of innocence. I have talked about the problem with “innocent” students defending themselves, but If her son was indeed “presumed guilty,” that has nothing to do with Title IX. If she is correct, it does sound as if her son went through a terribly unfair system that misapplied OCR’s instructions, but the instructions themselves do not eliminate a victim’s rights. (I explain the preponderance of evidence standard in these cases here.) In 2011 the implementation of Title IX, as it applies to sexual assault and other interpersonal violence cases, was explained by OCR to require a school to do something when a student comes forward as a victim of these types of crimes. This was done to address systemic issues with colleges covering up sexual assaults intentionally, “accidentally” through heavy-handed administrative responses, or by allowing a culture that perpetuates rape myths, and letting peer pressure silence the victims.
  5. Neither party is allowed an attorney. Ms. Grossman makes it sound as if her son was the only one or as if there was an attorney against her son. Neither is true. An attorney did not question her son, the board does not consist of attorneys, and in all likelihood the only person who had an attorney’s help throughout the process was her son.

There are many problems with the campus judicial system, but the case Ms. Grossman uses and the issues she has do not prove those issues. Her call for changing the system and making it more “legal” is exactly why attorneys are not helpful if you are going through your campus judicial process. While it is true that most campuses do not provide the same specific resources for accused students as victims (we offer both,) that is because the college and world communities (including most people who sit on a judicial body) do not understand these issues, and their ignorance (or outright hostility) support the accused in these cases. As a wise colleague once said only partially facetiously “they don’t need help convincing the world they’re good guys.”

Let me know what you think! I respond to all comments and all emails sent to DaveK@Collegejudicialconsultants.com.

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

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(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.

Case Study: The Underage Party–Hidden Considerations in the Judicial Process

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[NOTE: All names and identifying information has been changed to protect the privacy of the students involved. Any relation to a case you may know is purely coincidental.]

Steve was a senior at a competitive school living in a residence hall on campus. On Wednesday some underclassmen asked Steve if he would buy alcohol for a “suite” party they are having that weekend that would mostly be attended by other residents. Steve knew these students and has purchased alcohol for some of them before, so this request was not a big deal. Steve bought handles of different hard alcohols and a couple of cases of beer for them, but did not attend the party.

At 2:30AM one of the a freshman guests heading back to his dorm with a BAC more than three times the legal limit, was hit by a car, and was seriously injured. The situation made it to the campus newspaper, and there was a lot of upper-level administrative attention on that case—including the campus attorneys. Steve and the party hosts were eventually informed that there would be a judicial hearing for their actions with the charges being underage drinking, providing alcohol to minors, and reckless endangerment based on the party and the student’s injuries. At the hearing all the respondents argued that since Steve was not at the event he should not be responsible for how much the injured student drank, and that none of them should be responsible for the fact that the freshman was hurt on the way back to his residence since his being hit by a car was a fluke.

What Steve and the other students did not realize was that there were two simultaneous forces affecting their case. They knew about the one clearly written in the charge letter and presented in the evidence against them. They presented a decent (although not great) defense against that one, but they did not see or consider the political impact of the student’s injuries and how their case fit into the big picture. When it came to the case, the judicial board chair was aware that there were a lot of eyes on the outcome and that awareness was shared with the board prior to the hearing.

As the students presented their defenses, the board was listening for information to help address both the case itself and also the various implications of the student’s injuries. Since Steve and the other respondents did not consider that aspect they did not address it and the board was left with only their pre-case impressions and a belief that the respondents did not “get the seriousness” of what happened. Steve was found responsible for providing alcohol and reckless endangerment, and was suspended for the last semester of his college career and had to come back the following year in order to take the mandatory class he needed for his major.

It is important to realize that the board did NOT intentionally punish Steve more severely because of the political undercurrents. By the time the case got to the board, the impact of the politics and attention were already in place, and those factors directly affected the outcome:

  1. While this board almost never heard alcohol cases the fact that they were implied a seriousness they could not ignore.
  2. While the student injury was clearly why the case was treated so seriously, the board and the respondents were not looking at the same issue. The respondents focused on the “fluke” nature of that injury, but the board believed the idea that an extremely drunk freshman getting hurt was actually very foreseeable. All the respondents seemed to be doing was missing the point and not taking responsibility.
  3. The decision to hold Steve accountable even though he was not there was not what was normally done, but the decision to do so in this case was made prior to the hearing. When the board got the case the students assumed that Steve would be fine based on their experience, but the board decided the person most responsible was the older student that supplied the alcohol because he had the ultimate responsibility for how that alcohol was used.

Cases do not happen in a vacuum, and the political climate at the school, the “headline” news, previous cases, and recent history can all play a factor. The good news is that these are not factors in 95% of cases. The bad news is that when those external considerations are factors, it is highly unlikely that a student, fraternity, or sorority will be able to identify and address them properly. If you are in trouble, and you think the people working with your case are treating it like a bigger deal than you think it should be, there are probably more things going on that you know. Contact us for a free consultation to see what you may be missing and how we can help.

Have you had a disciplinary case against you, your fraternity, or your sorority go worse than you expected? Contact me at DaveK@Collegejudicialconsultants.com and share your story for a future piece or share your story in the comments.  Be safe, be good, and be ready.

Getting Better Advisors–Why Administrators Are Wrong About Us, And Why That Mistake May Hurt You

At College Judicial Consultants we have tremendous respect for judicial officers, Greek advisors, and other administrators, but believe they should be less mistrustful of outside help during the campus judicial process. When that help is an attorney for the non-legal judicial process, that help can indeed hurt a student and cost the student thousands of dollars. While we understand that mistrust, we believe that when you look at the support offered on campus, we are not truly outside.

Fact 1: Every student discipline system allows a student or organization (“respondent”) to have an advisor, with most limiting that advisor to a non-attorney from the campus community.

Fact 2: Only a handful of schools have an organized advisor program where they train a few faculty and staff in how the system works and make those people available for students going through the process. These advisors are well intended and may help a few students each year. However, their job is to make sure the student understands the process and is connected to campus resources; not to “help” the student minimize the consequence or negate false accusations. In other words, they are there for emotional and psychological support only. That support is REALLY important (in fact we encourage every client to take advantage of it) but that type of advising is less than a respondent needs when they are innocent or the stakes are high.

When a respondent goes through the disciplinary process there are two essential parts of that process the respondent needs to understand—the procedure and the content. Judicial officers often say that their system is “different” and thus requires someone with specific training to understand it. While this is technically correct, ask your judicial officer if he or she can understand other systems and I’ll bet you $5 they won’t have a problem doing so. Judicial systems have slight differences, but they are similar enough that there are best practices, model codes, community assessment models, and uniform standards. More importantly, any system they have must be explainable AND in writing in a way to make it understandable. When you meet with the judicial officer he or she will explain it to you and that explanation is essentially the same “training” the advisors from the school receive.

The much more important part is developing the content where the respondent gets the chance to tell their side of the story and present evidence to show how their version is correct and the accusations are inaccurate. It is during this part of the process where respondents make mistakes that can get them found responsible when they are not, and make their sanction worse than it needed to be. It is in this arena that our consultants are miles ahead of any other “advisor” you will get from the school for two very important reasons:

  1. The least experienced of our consultants has seen at least 10 times the number of cases as the most experienced advisor from your school (with that number closer to 50 times more.) This means that your consultant has seen literally hundreds more responses than anyone you will find on campus, and are much more likely to have seen a case with similar facts to yours.
  2. Our consultants’ only goal is to make sure you are not found responsible for something you did not do and have the smallest consequence possible for what you did. We are not faculty who have opinions about plagiarism at your school. We are not administrators who have had to deal with “problem” students. In other words, we do not have any reason to protect the school, the community, or the system.

In other words, we are like the best advisor you might find on campus but with vastly more experience, and without any agenda other than giving a respondent the best chance for the best result. Why would anyone on your campus not want you to take advantage of that?

 Contact us for a free and completely confidential consultation to go over your case and see what we can do for you.

(Un?)Intentional Bias Against Greek Organizations–Iowa Edition

There was an article in the Des Moines Register that discusses the higher rates of arrest among Greek students than their non-Greek counterparts that was essentially a reprint of an article published in the Iowa Press Citizen.  There are so many things wrong with the articles that I’m just going to choose a few. As a preface I want to remind you that I am not now, nor have I ever, said that Greek organizations are innocent of all wrongdoing and are framed.  I understand that Greeks, on average, tend to have higher rates of binge drinking and other behaviors.  As I said in an earlier post about the systemic bias against Greeks, the problem is that the police, administrators, and people who assess these behaviors go into their interactions with Greeks expecting a particular result.  That being said, here are some problems with these articles:

1.  The assumption that arrest percentages correlate to a proportional increase in illegal behavior.  Let’s look at the Greek men versus non-Greek men.  According to the article in 2010-2011 fraternity men had an arrest rate of 15.1% and non-Greek men had an arrest rate of 8.5%.  (I’m going to make an assumption that most of these “arrests” are alcohol-related for things like underage possession, public intoxication, open containers, and the like.  I can’t believe that Iowa students are committing more serious crimes at the rate of 1 in 10 male student, and these types of arrests are the ones I’m most familiar with on a campus.) On the surface this seems like a lot, but how are these arrests (most likely citations, by the way) made?  When the police appear at a fraternity party do they ID everyone and cite anyone who is over the limit, underage, etc? Or are these singular arrests of students they stumble upon?  I will bet $100 that these arrests/citations are done in masse which means that every time they show up at something they’re making dozens of arrests/citations? This matters because I can guarantee you that the police are not walking the floors of residence halls on Thursday-Saturday nights.  I may be wrong, but I’ll bet the 8.5% of non-Greek arrests are done in small numbers (1-3 students at a time) and the 15.1% are done in larger numbers.  This would mean that the incidents are not dissimilar.  I could be completely wrong, but there is NOTHING in the data that lets me know either way.

2.  The use of the word “frat” makes it clear that the author is not Greek.  This doesn’t really matter, but it does make it more likely than not that comments that seem anti-Greek are at least carelessly so.

3.  Arrests happen where the police are.  This is a version of the argument explaining the arrest rates in urban/minority areas so I’m not going to go into too much detail, but it essentially says that there is an underlying bias against minorities and the urban poor that makes police in those areas more likely to arrest the people living there.  I think the same is true for Greeks, especially those with fraternity houses outside the school grounds. If you are part of a city or town where the college is a large part of the population, there is often an “us and them” feeling that develops among the non-college population.  For those people nothing expresses the privilege and difference of college students like fraternity houses with neighbors frequently calling the police on anything that is outside the “norms” of the neighborhood.  If you have 30-60 students living in a house, almost everything they do will be outside those norms.  I would ask how many calls to fraternity and sorority houses the police receive, what their patrol patterns are, what their protocols are when the find something in a fraternity/sorority house (as opposed to when something happens in a residence hall) and other questions to give the arrests some context.  Maybe I’m wrong, but I’ll bet you find at least a corresponding 2:1 rate of normal patrols and dispatched calls.

4.  Shame on the University of Iowa (and other schools) for not protecting their students better.  Again, without knowing the actual reasons for the arrests/citations this is conjecture, but it makes me furious when a school allows arrests/citations to be given for drunk in public and underage drinking without fighting the town on those arrests.  An 8.5% arrest rate is ABSURD.  I am all for arresting all students (or anyone) who drives drunk, vandalizes, or commits other crimes where there is either a victim or it is so reckless that a third party-injury is likely.  I also refuse to believe that most of the arrests fall into that category.  So what you have is a police force targeting students for the sole purpose of raising revenue, and the schools allow it.  In fact, “town/gown” relations (the relationship between the school and the local community) almost always has the school apologizing rather than standing up for the students.  I’ve seen it at other schools, but what this type of police profiling does is increase drunk driving (because it’s easier to get away with than walking home), decrease the number of students returning to the safety of their homes (because if you stay indoors, you are less likely to get caught), and other actions that actually decrease student safety.  The solution is not to demand fewer arrests by the students, but to demand that the police treat students the way they treat the rest of the population.  Have the police stop people leaving restaurants and bars, or leaving dinner parties, and watch how quickly the public outrage changes their behavior.

So what can you, as a student government/organization, do?  There are several things:

1.  Organize a week-long boycott of local business.  Remind the city of the benefit students bring to the community and make it clear that the boycott is due to police profiling.  You need to engage the community and get them in the fight because your school won’t do it alone.

2.  Each student should challenge any judicial action resulting from the arrest/citation.  I do not know what action Iowa takes, but I’m willing to bet that there is a protocol that comes into play every time they get a report.  The school is not equipped to handle 8.5-15% of the population demanding a hearing.  Tax the system and maybe you can highlight the injustice to members of the administration who can do something.

3.  Represent yourselves in court and fight EVERY citation.  This is similar to 2, but the impact will be to the courts and the police force.  Most police either can’t attend court or get overtime for doing so.  Make them come.

We would love to help the students in the Iowa Greek community or The University of Iowa Student government develop a system to fight this on behalf of the students.  We can come train a group of you to be advocates, we can represent every student cited for a very reduced rate, or work together to find ways to bring this to a stop.  Get in touch, whether you are at Iowa, Arkansas, or any other school, and let’s see what we can do. Nobody will fight harder for you than you fight for yourselves.  Let me show you how.

If you are a student and want to help us out in less than 3 minutes, please take our survey!  https://www.surveymonkey.com/s/MGDYXK5 

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