College Judicial Consultants

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Stop Forcing Good People to be Defined by Bad Decisions.

“Confession of errors is like a broom which sweeps away the dirt and leaves the surface brighter and clearer.” -That Gandhi Guy

 

After running CJC for the last 18 months, being the Chief Judicial Officer at MIT for over 4 years before that, and being involved in student misconduct for 5 years before that I know one thing to be true—almost all students are really good people. That doesn’t mean that these good people don’t do some really bad or really dumb things, but the fact that they do them does not turn them from individual symbols of hope and limitless potential to Jack the Ripper (or even John the Plagiarizer.)

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Who doesn’t love this guy? If he was a student at any college and made as many mistakes as he has, he would have been expelled.

Instead what happens is that once they mess up they find themselves at a place where they think they are totally screwed and their life is over if they get caught, and will be able to skate by if they do not. This isn’t a hard choice for most of them because the consequences of being caught are the monster under the bed, and not getting caught means they get to move on with their lives. Faculty and staff know that students are still developing as people (there’s even something called “student development theory,”) but people act shocked and disappointed when, despite the lack of almost any real-world examples, students don’t make the decisions we expect “fully developed” people to make. We punish them as if they have broken some rules of God and nature that make the university or the community what it is, and that their failures endangered everything good in the world. What we do not do is allow for the fact that, in a lot of cases, we have failed them by not giving them a third option.

 

Before you say what I know you’re thinking, let me be clear: most students are in similar places as the “bad actors” developmentally, face similar pressures, and yet act ethically and intelligently even when things get tough. There is definitely an obligation to the larger community to hold the “bad actors” accountable to reinforce the good decisions and support the majority of students who do the right thing. I get it. I believe it. I tell my clients that. However, that does not mean that we are not remiss by not offering any  opportunities for students and student groups to come clean.

 

The way bad decisions work (and I speak from experience) is that they are made and there is a period of time between the bad decision and when you get caught (assuming you get caught, which is less likely than we pretend it is.) During that time, you worry about what will happen if someone finds out, envisions your dream career and life evaporating into nothing, and the people you love and respect being so disgusted by you that they abandon you completely. For many students the time after the bad decision is when things get worse-they drink to drown the guilt, they start skipping class to avoid the professor, they get angry at the pledge that “makes them” feel bad, etc. Even more tragic is that they occasionally spend so much time trying not to feel terrible that they start justifying what they did. They say things like “everyone does it” and “it’s not that big of a deal.” When we do not help students be reflective and learn the right lesson, they teach themselves the one that makes things better for them.

 

And that’s where we fail all students.

 

What are we trying to teach the next generation of leaders? If the lesson is “never make a mistake or bad decision” then we are simply fools. Nobody goes through life flawless (except for maybe one skinny bearded fellow, and I’m pretty sure even he hung around with whores and thieves.) We should be teaching people that it is not a bad act that defines them, but what they do about their bad decisions. In other words: character is not defined by perfection, but by identifying when your actions have hurt someone or something and doing what you have to do to make it right.

 

Schools must offer a way for a student to come forward before he or she is caught and admit the mistakes he or she made without facing the same (or similar enough) consequences that he or she would if he or she was caught. That avenue should allow them to escape the more common penalty and instead provide them with the opportunity to make amends. SOME schools offer restorative justice options for lessor misconduct, but I don’t know of (m)any that allow larger misconduct to be dealt with in this manner.

For example, If a student copies a solution on a homework, hands it in, and immediately regrets it there should be a clear path for her to confess and do whatever is necessary to atone for that decision. Otherwise students will remain in the situation they are now—covering up all misconduct because they believe (usually correctly) that admitting it will guarantee that they get suspended or that they will otherwise be stopped from pursuing their dreams, even temporarily. 

 

I am not saying the restorative path should be easy, or that students will be willing to do what’s necessary to redeem them. However, there is value in developing the next generation of leaders to be people that admit when they make mistakes and are willing to do whatever is necessary to repair the damage they cause. If a student comes forward for academic misconduct before the act is discovered, a professor could give them an incomplete, make them complete a substantial assignment, and lower their final grade even if they complete the assignment. That’s a punishment, but it also provides an incentive to do the right thing in a way that either getting away with it or having a hearing does not. If the atoning student chooses not to do the restorative work, then that refusal can be used against him or her at a subsequent hearing because their lack of character will make the current sanctions that much more appropriate.

 

Without providing students a “safer” way to come clean we are teaching them that once they make a mistake they should do everything they can to not get caught. That failure to develop character is much more serious to me than someone copying question #4 on the third homework in their Physics I class. Once you create a culture where the people who make the worst decisions do what they can to get away with that bad decision, you are actively taking people who are fundamentally good and train them to be the next Ken Lay or CEO at Bank of America. Colleges should do better.

Let me know your thoughts in the comments or at DaveK@Collegejudicialconsultants.com.

 

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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.

Apples and Oranges—Sexual Assault as a Judicial Issue (pt. 2)

There is a lot of understandable outrage from sexual assault and interpersonal violence advocates about the way they see assaults mishandled on college campuses. The criticism I hear most often is that since sexual assault/rape is a crime it should be handled by the police and the criminal justice system. They worry that a college will mishandle things or pressure a victim, and that the victim will not be able to avail herself of the criminal courts. As a result, they fear that the rapists and assaulters on campus will go free or, if they are punished they will get a slap on the wrist compared to what would happen if things were handled “correctly.”

Let’s be clear—recent history has given these advocates a lot of cause for concern. I have already discussed investigations about the way very prestigious schools have mishandled sexual assaults and the reporting of incidents, and those failures (along with the other anecdotal ones any advocate can tell you) have engendered an understandable belief that schools are actively (or at least negligently) silencing reports to make themselves look better.  After all, they only have to report sexual assaults they know about so the less they know the fewer “occur,” and the safer their campus will seem to prospective students and their families. Since I do not know the actual story at any of these schools, I do not want to comment on their intention. I have already talked about how a bad system can hurt victims; however, the college judicial system is no worse than any other system and in some cases has distinct advantages for a victim. If you believe that the solution to the problems with some judicial systems on some campuses is to eliminate their ability to hear these cases, you will be hurting more victims that you help.

As a hypothetical, let’s say that a victim comes forward and says that she was sexually assaulted at a party in an off campus apartment. She says that she went there because she liked one of the guys that she knew from class, but since she was nervous she drank more than she normally does and got very drunk. While she remembers flirting with the guy she liked, she doesn’t remember much after she played a drinking game with “jungle juice” but that she woke up in his bed with him and knows they had sex. When she woke up and realized what happened, she freaked out because she would NEVER have had sex with him. In fact, she is known as a good girl, and that has made her somewhat of a challenge to the boys that know her. When the boy woke up he was being very nice as if nothing was wrong, and offered to take her to breakfast and asked if she would spend the day with him. She made up some excuse she can’t remember and went back to her dorm. A week later her RA brought her to the sexual assault advocate’s office when she heard what happened.

There are much more “horrific” cases that occur on a college campus, but do not be confused—this is sexual assault. Situations like this were the majority of cases that came to me as a judicial officer-ones where the extent of the sexual act was never a question, the victim and attacker knew each other (and often in a positive way prior to the assault), and alcohol was involved. In these cases a victim is often unsure about what she wants to happen to her attacker. There are times where she wants him thrown in jail, times where she wants him kicked off campus, and times where she only wants him to understand what he did to her so that she can “move on.” In fact, I have had more victims back out when they thought their attacker would be suspended or expelled than I have victims back out because of an uncertain outcome. So how do you advise her?

If she wants him held accountable there are three roads she can take. If she decides to go the criminal route she may be able to get him arrested, thrown in jail, and if the case is successful he may face time in prison. However, she has very little control over what happens in the case, it can take a long time, a victim is often kept out of the loop, and in the type of situation described above many DAs will not prosecute. She could decide to sue him, but this option is expensive and takes even longer. Finally, she could decide to bring him up on campus judicial charges. While this option would  result in a much smaller consequence for the attacker (i.e., even if he’s expelled that’s much better than prison,) but the hearing will likely be confidential, she will be allowed to dictate much of what happens, and she can surround herself by the resources set aside for victims in these cases. That is at least true in good systems. Most importantly, if she chooses to use the campus judicial system she can still decide to use the other two because choosing that option does not in any way prevent her from changing her mind and also using the criminal or civil systems.

I know there are many survivors, victims, and advocates that don’t think the above benefits make the judicial system worth it, and will never accept that the system is “effective.” However, I think “effectiveness” should be defined by how a victim’s desired outcomes are met, and by the level to which a system can avoid revictimization. If you want to look at the systems based on their failures, none of them are “effective.” If you want to look at them by their successes, each of them can be. However, I believe that if you look at them as distinct and often not mutually exclusive options, the campus judicial system has the most potential to be victim-focused, minimize revictimization, and meet the victim’s desired goals to allow her to continue healing.

Of course, that’s only true in good systems.

 ______________________________________________________________________________________________

 This is a plug. If you do not want to read a plug for services, stop now! We will still adore you.

For the 2013-2014 school year we are going to be offering a victim assistance package to advocacy offices on campus. This will include:

  1. Serving as an on-call judicial resource for unlimited complainants for one academic year.
  2. Allowing the extent and nature of the assistance to be completely determined by victim and/or the advocate including maintiaining as much anonymity as a victim desires.
  3. Helping the victim build the most effective case against the attacker possible.
  4. Allowing advocates to exclusively focus on support.
  5. Identifying situations that may require outside legal involvement (e.g. a denial of due process, forced mediation, etc.)
  6. Reviewing the sexual assault policies, and offering recommendations for improving them.

We are in the process of ironing out the details, but if you want to retain our services we will charge half of what we would charge when these services become publicized in August. For less than the cost of hiring an outside investigator for one case, we will help as many victims as possible build strong judicial cases. We believe this will increase the numbers of cases that are heard, help advocates prove there is a problem on their campus, and by removing much of this responsibility from the advocate it will increase the trust and support between them and the victim. Contact DaveK@CollegeJudicialConsultants.com with any question or to discuss costs.

The 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?

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.

Good luck (and good decisions) during finals!

StressedStudent2-1

Most schools are winding down with finals either this week or next which means *stress.* We all do silly things to make ourselves more anxious during high stress times, but for most of us that anxiety will not translate to any real problems. There are times, however, when our bad habits cause us to respond to manageable situations as if they were hopeless. It is then that we do things that we would not do otherwise like plagiarize, cheat, or take other shortcuts that can get you suspended or expelled from school. Most students I deal with that get caught cheating are not habitual cheaters. They are good people and good students who were overwhelmed and acted without thinking things through. By taking a deep breath and asking yourself the following questions you can save yourself a lot of trouble down the road:

  1. What will happen if you get caught? For most academic misconduct you should assume that you will, at a minimum, fail the class. In addition, faculty and TAs are actively looking for academic misconduct during the last couple of weeks of school and during finals. Because of this, you will probably also be referred to the judicial office and if you are found responsible you will be suspended. Even if you would fail the final or the last paper without cheating, there is a HUGE difference between an earned F and an assigned 0.
  2. How much will cheating help you even if you get away with it? Going back to the above example, let’s assume that the final is half your grade. If you have a D going into the final that means you have at least 30 points (60% of 50 points=30). If you cheat and get an A, that would add 45 points to your grade which would give you a C. So if you cheat and succeed you’re getting a C, if you don’t and you get a D you’re getting a D, and if you get caught you’re getting an F and likely getting suspended. The potential reward is not worth it. You’d be better off not studying and spending that time on other classes. (Note: the math works if you have a B going into the final as well.)
  3. How easy is it to catch plagiarism? The answer to this is “easy.” Professors and TAs know to Google phrases that sound “off” to them and they will likely find the source you used and didn’t credit, or the book you pretended to use and cited. If you don’t have time to finish a paper without plagiarizing, talk to your professor ASAP. Even if she will not give you extra time, you will likely only lose a set amount of points by handing it in late, and that’s much better than a zero.

    Most people get away with this part and are caught during grading.

    Most people get away with this part and are caught during grading.

  4. Why would someone I care about ask me to risk everything so they can cheat? Many academic misconduct cases are when one student cheats of another student who is doing well in the class. In most systems, especially those with an honor code, both students are accountable for that even if one student receives no benefit from the misconduct. I understand that if your friend, that girl you like, or your boyfriend asks that it is really hard to say no because you want to help them. However, this is the academic misconduct equivalent of them asking you to smuggle their drugs through the airport and I bet all of you would be too smart to do that.
  5. Have I tried everything else? Your school has academic support resources, policies for getting an “Incomplete,” and other options to get help with academic situations that seem hopeless. Even more importantly, most of your faculty want you to succeed and if you approach them they may have options for you. If none of these actually help you then at least you tried to do everything you could and you can feel better about your actual grade.

Of course, if you decided to cheat anyway and get caught, we’re here to help.

What other strategies do you have to get out of trouble without cheating? If you’re faculty at a school what have you done to help students in crisis? Any tips?

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.

Greek Case Study: How to Stop One Member’s Misconduct from Defining Your Fraternity or Sorority

[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.]

Johnny is a junior at a competitive school and a member of a popular fraternity with a physical house. While responding to a noise complaint at the fraternity, the school’s police smelled the strong aroma of marijuana coming from the house. They are allowed in and locate the smell coming from Johnny’s room. They knock, Johnny opens the door, and there are 2 bongs going, scales, baggies, and a half-pound of marijuana. Because the police want to cut Johnny a break they do not arrest him, but they do refer him to judicial affairs for possession, intent to sell, and other charges. Judicial Affairs also refers the case to the Interfraternity Council Judicial Board to address the potential fraternity misconduct.

Johnny is found responsible at the judicial hearing and suspended for a year. At the hearing he reveals that he was dealing, but only to people he knew like his brothers and other friends. Since smoking marijuana is only a citation in the state he figured he could make a little money, smoke for free, and that it wasn’t a big deal. That information is shared with the IFC.

At the IFC hearing, the fraternity says that they “did not know” Johnny was dealing, and that they would never have allowed it in the house if they did. They admit that they knew Johnny smoked, but claim that no other brothers smoke and that they too did not think it was a big deal since “it isn’t against the law or anything.” They admit that they should have stopped Johnny from smoking, but deny responsibility for everything else. They are found responsible for dealing and suspended for 3 years.

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So what happened? What could the fraternity have done to prevent the hearing, or failing that, have a much lower sanction? (I’m assuming you know if you deal drugs you risk getting kicked off campus/arrested, and that you’re smart enough not to do it so this is about the fraternity.)

The fraternity did not get in trouble because Johnny was dealing (or even smoking in the house.) The fraternity got in trouble because they did not stop Johnny and thus let Johnny define them. In other words, by allowing Johnny to continue doing whatever he was doing in the house they endorsed the behavior, making that behavior part of the chapter’s culture. Not intervening when a brother/sister does something against the rules or values of the organizations dos not mean you are passively allowing something, it means you are actively embracing that behavior.

Don’t let one brother or sister make all of you into a herd.

When a single member or a small group “go rogue,” you are expected to put a stop to it, and will be held accountable if you don’t. While you can’t stop someone from acting like a donkey, you must stop them from feeling supported or comfortable doing so until the behavior stops OR they leave the fraternity/sorority. When I work with fraternities or sororities I recommend some ways of dealing with this with different levels of severity, but it important that you address it (and move through the options) quickly:

  1. Have the President, VP, Standards Chair, or Risk Manager (i.e. whomever the chapter agreed should address member misconduct informally) talk to the brother/sister and get them to stop immediately and get it out of your house. This will usually be enough, but if it isn’t;
  2. Have an active and effective judicial committee in place to give a formal mandate and sanction. Most chapters I know have someone with a title like “Judicial Chair,” but almost none of them have an active and trained judicial body to address misconduct and keep it in house. Not having one is a huge mistake not only because it is a very useful tool to uphold the values of your chapter, but also because demonstrating the ability to and history of dealing with internal issues will help you if your organization ever gets in trouble. If, after getting the sanction the behavior still does not stop;
  3. Notify your chapter advisor (if that person is unaffiliated with the University) and have him/her speak to the student. This is the “last chance” discussion that should work, but if it doesn’t;
  4. Notify the Greek life office that you have a brother/sister doing something harmful, that you’ve tried to make them stop, and he/she won’t listen. You may still have some accountability for that person’s actions anyway, but I guarantee it will be much less than if you get caught and haven’t dealt with it effectively.

I know it may seem harsh to “offer up” a brother/sister, but when they stop acting like one you can stop treating them like one, and by this point you have given him/her/them plenty of opportunities to change.

When you do not address and correct the behavior of one of more members of your chapter, you should assume you will become known for that behavior. While the necessary conversations to fix that behavior may be uncomfortable, difficult, and hostile, it is a lot easier than proving that the worst of you do not define you.

Do you have any difficult members putting you at risk? Let me know about them in the comments or at DaveK@collegejudicialconsultants.com!

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.

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