College Judicial Consultants

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Archive for the tag “bias”

The Disappointing Appeal Process (pt.2)-Systemic Unfairness

[Apologies for the lateness of this post. I had issues with scheduling, and decided that I would rather wait until today to post it than post on the weekend. Also, this one is LONG.]

unfair

 

When you’re a student or Greek organization and you’ve been sanctioned with suspension or worse, your last hope is the appeal. If you can manage to find an argument within the very limited grounds of most systems that should result in reconsideration, it is still highly unlikely that you will be successful. There are reasons simply due to flaws within the systems, but those flaws do not influence the outcome in the majority of cases. The reasons why many appeals fail are simple:

  1. The respondent did it. If you did something wrong and you had a fair hearing, you were probably found responsible and sanctioned accordingly. The reason your appeal failed is because the outcome was not influenced by anything other than your actions. Accountability isn’t unfair.
  2. The respondent’s case was weak. It is possible that you did not do something or that you did not do everything for which you were found responsible, but you presented a bad case to the judicial board. The appeal is not there to give you a chance to make a better case so if you make mistakes in the hearing you are stuck with those mistakes. (This is the #1 reason why we want you to work with us before your initial hearing.)
  3. The sanction, while harsh to you, is fair in the context of the judicial system. There is no student that will be sent home for a semester or year and not think that the sanction was “harsh,” but the fact that there is a big impact on your present and future plans does not (necessarily) mean a sanction is excessive.

That being said, there are systems where an appeal is doomed to failure that have nothing to do with the “legitimate” reasons listed above.  While I hope (and still believe) that most schools are free from these flaws, I have found some or all of them more frequently than I would have thought.

  1. No infoThe decision letter does not offer sufficient explanation for the rationale and/or the sanction. The judicial system is supposed to be educational, but there are many judicial administrators who keep the sanction letter language minimal. There are many reasons for this, but without sufficient explanation for the decision it is almost impossible for a respondent to understand how a procedural error may have affected his case, whether all evidence was considered and applied correctly, or whether the sanctioning decision was reasonable in light of what was decided. Even worse, I have seen cases where the ambiguity of the decision letter caused the respondent’s appeal to be dismissed without evidence because the respondent was forced to supply an informed guess on the process that was simply negated by the hearing administrator or Chair. Even if their denials were true (and in some cases I know they were not) it leaves the respondent with an overwhelming sense of unfairness and lack of transparency that should be avoided.
  2. The appeals officer is in same division as the judicial officer, and often a direct superior. I have full faith in the ability of almost every student affairs administrator to be impartial and professional, but having such a direct link is patently unfair for everyone. If the Assistant Dean responsible for running a system and delivering a decision has that decision reconsidered on appeal by the Dean, how is a student to believe and have faith that the professional relationship had no bearing on the outcome? As someone who knows the type of communication that happens within a division (e.g. “critical students” meetings, on-call professional meetings, etc.) there is good reason to doubt the impartiality and fairness.

If there is a case with a potential outcome of suspension it is highly unlikely that the case was not discussed between the judicial officer and her superior prior to the actual hearing, and the outcome was most likely shared immediately after the hearing. What’s more, if there was a suspension or expulsion the respondent’s case was shared with other offices in order to plan for that student’s departure, and many of those offices are under the same umbrella. When the appeal gets to that superior, she has likely already considered the issues and has a position that consciously or subconsciously influences her analysis.

3. There is a belief that overturning a board decision either undermines or fails to support the board, and the students and/or faculty on that board. Serving on a judicial board is an incredibly difficult and thankless job, especially for students. Being a student that hears a case against another student (especially if you identify with the respondent in any way), makes a finding of responsibility, and then suspends or expels requires a level of personal development most “adults” don’t have. In addition, the judicial officer has worked with the board and has a strong personal relationship with them. When a respondent appeals the decision, the judicial officer often approaches that appeal from the initial position of wanting to “support” the board, and while understandable, it is an unfair approach. The Board should be trained to understand that their decisions cannot be personal, and therefore modification or reversals of that decision are also not personal. I have seen firsthand the frustrated response of hearing boards that have their decisions changed, but those feelings must not be part of an appeals officer’s considerations.

4. A higher standard is used in reviewing a board’s decisions no matter how close to the “than not” part of “more likely than not” the board’s decisions were. I know that’s a mouthful, but bear with me. On appeal, if a respondent can argue the findings of fact, the hearing officer almost always needs “clear and convincing” evidence that the finding was wrong. If a 5 person judicial board decides in a 3-2 vote that it is “more likely than not that a student stalked his ex- and one of the 3 was “barely” convinced, that decision is treated the same on appeal as if all 5 decided that he definitely did it. So if a hearing board (cumulatively) thought is was 51% likely a student did something or 99% likely, the same standard is used to decide whether they made a mistake. While one would like to think that there are not many cases where 51% likelihood would result in suspension or expulsion, that isn’t the case-especially in Greek misconduct cases or if the respondent has priors.

5. When considering an appeal, the person referred to for clarification is usually the one who made the initial decision. A respondent will raise many issues on appeal, and most of them will directly challenge a finding or make assumptions based on the outcome. If the case file isn’t sufficient to decide on those claims, the appellate officer must look somewhere for clarification, and that place is almost always the judicial administrator that oversees the system and/or the Chair of the judicial board. It is unlikely that their response will be one that supports the claim on appeal, because if they believed a mistake was being made or their actions were unfair they would not have done them.

6. The appellate body, either due to their own feelings or based on legal counsel’s advice, believes that an facebook_861744770-787913admission of error makes them more susceptible to litigation. While this is almost impossible to prove, I believe it to be true. Imagine a student that has been falsely accused of academic misconduct by a well-intended professor. At some point during the semester his professor has informed him that he cheated, and is failing the assignment and/or class and that the case will be referred to judicial affairs. Sometime later (days or weeks) he is called into the judicial affairs office where the case is explained, and he is told that he may be suspended if he is found responsible. He then scrambles to develop a response to these allegations to show his innocence, usually within one or 2 weeks of that meeting. A hearing is scheduled at the next opportunity, and the respondent has to plea his case to a board of strangers who are weighing his word against the professor’s who has an implicit authority and “no reason to lie.” Sometime in the next week he gets the decision telling him he’s suspended. He has a week to write an appeal, and sometime in the next 1-2 weeks he will get a decision. The whole time he’s stressed, anxious, and depressed. If the appeal goes his way he has still spent at least a month with major impacts on his life and his ability to be successful. Even worse, in many systems even finding him not responsible is not enough to change the professors decision regarding the grade, and even if it were the student has likely dropped the class or stopped going since the grade was predetermined. If the class is one that he needs to graduate on time this process, even if he’s found not responsible, has impacted his ability to graduate on time. If the appeals officer finds that there was a major procedural error or that there were other errors, that student has ammunition for a claim. The worse the mistake, the more the pressure to support the decision can be.

I want to reiterate that the reason most appeals do not “win” is because of the actual facts around a case, the respondent’ actions, and the sanction. Even where the other factors exist, I do not believe that most people are knowingly and intentionally participating in an unfair process. However, it is crucial that a school examine its appeals process, identify any obstacles to impartial consideration, remove any factors that can reasonably be seen as unfair or that impact transparency, and that students have a clear understanding of what goes into the decision making. Identifying and disclosing factors a respondent may object to is much better than leaving that same respondent believing that he was a victim of an unfair system.

What do you think? Are there other factors that influence a decision, or am I completely off base?

Coming up: Steps to improve the fairness of the appeals process that support the parties and the system itself.

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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