College Judicial Consultants

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

Archive for the tag “appeals”

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.

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Insecurity and the Appeals Process in Judicial Cases

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

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

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

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

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

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

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

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

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

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

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