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

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

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

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

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

 

 

(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.

 

Top Five (or 6) Reasons Students Get in More Trouble At the End of the Year

In my experience, the last 6 weeks of school have the highest amount of judicial incidents. I wanted to share some of the reasons for the spike, and offer some tips on how to prevent them. (As always, if you have any problems or want some advice on how to avoid problems, we can help.)

• Senior Week. While it may be true that the rules are “relaxed” during this week, there is always someone who will take it too far and confuse relaxed enforcement with anarchy. Every year there are seniors who wake up from a night of debauchery to find that they have a meeting with the judicial office and have placed their graduation in jeopardy. Tip: Remember not to fight, destroy things, do drugs, or commit sexual assault and you should be okay. Better yet, stop drinking before you won’t remember all the fun you had.
• Senior Week, Greek Version—Once classes and exams are over there are occasionally seniors who decide they can party with reckless abandon. The problem is that if they violate the rules, even if they are the only people left in the house, your fraternity or sorority will still be held accountable for their actions long after they’ve graduated. Tip: Work with your chapter advisors and Greek life office to separate your chapter from any “problem seniors” before they do something wrong. Even letting those resources know you’re concerned will help mitigate the trouble later if something happens.
• You Are “Sick of It”—Stress makes small sparks into huge flames. If you are in a forced relationship with someone (roommate, project team, etc.) that has been difficult to this point, it is not going to get easier.  Tip: Get help-your RA, hall director, TA, and professors either have some training in mediation or can point you to someone who does. Address these issues BEFORE you lose it on your roommate for putting on Skrillex at 3am AGAIN, or on that jerk in your business class who isn’t doing his part.

 

• Breakups—When you’re in a relationship with issues, nothing brings those to the forefront like the looming specter of finals and summer break. Many breakups happen during the last 6 weeks of school, and someone invariably does not handle it well. This can lead to things like late night confrontations, unwelcomed and repeated texts/phone calls, and other behavior that quickly escalate to stalking and harassment. Tip: Listen to what the other person is telling you regarding his or her boundaries and respect those even if it doesn’t seem “fair.” Connect with the counseling center or administrators you know to safely talk it out.
• Missed Work Catches Up With You—April and May are also big “academic misconduct” months. If you are too behind in a class to catch up, remember that an earned F is better than a sanctioned zero and a year home on suspension. Tip: Talk to your professor and explain your situation. Addressing it with 5-6 weeks to go will be well received, and your professor may even have some tips to help you feel less overwhelmed.
• Spring Weekend—In the Spring almost every school has a major event with great musical and comedic acts and day-long functions—essentially they throw a HUGE two-day bash. In addition, there are also a lot of unofficial parties happening at the same time. What you may not realize, is Spring Weekend is also a time where most student affairs staff are required to work. In other words, there are more people on the look out for problems and disruptions than at any other point during the year. So when a student lets loose and comes to campus after they’ve been drinking for 6 hours in the sun or tried mushroom tea for the first time, they get caught. Tip: If you’re going to “get wasted” have a safe place to stay away from campus and people to make sure you’re okay. While you may miss Macklemore and Ryan Lewis on the quad, you won’t miss school for the year you’re suspended. Bonus Tip: Watch your guests! Remember that if your friends come visit that their actions can be held against you as if you did them yourself. Be prepared to keep anyone who visits in check.

Do you have any questions you would like answered regarding judicial issues, risk management, student advocacy, or anything else? Email me at davek@collegejudicialconsultants.com. I’ll answer every email I receive and may use some of them in a newsletter or blog.

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

[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.