College Judicial Consultants

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Archive for the tag “Fairness”

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?

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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.

The Guidelined Dead—Chico State and the Greek system.

I’ve written before about Chico State and the “nuclear option” they used in response to repeated misconduct in the Greek community. Their rebuilding plan following this was released on Valentine’s Day and outlines guidelines that “must be agreed to” by the end of February in order to grant the Greek chapters recognition. In doing so, Chico State attempts to present a reasonable response to both protect itself and also allow the Greek tradition to continue. In actuality, what they do with rigid definitions and intractable minimum responses, is demonstrate a hostility to Greek life. What this does is diffuse the potential student and alumni response to shutting down the chapters while setting the stage to do just that- a practice becoming more common across the country.

I am in no way saying that fraternities and sororities that engage in severe hazing or other serious violations should be protected or immune from consequence. On the contrary, in presentations on next step risk management I talk about how certain activities are never worth the risk and will and should result in a chapter being shut down by the school or national organization. My issue is not that Chico felt the need to respond to what they believed was unacceptable conduct. The issue is that these conditions essentially ensure the end of Greek life, and will allow them to blame the students for that end.

In Chico’s plan, they essentially make anything that happens where 2 or more Greeks live together a chapter event, and any violations that happen at that “event” have a mandatory minimum consequence of a one-semester suspension. This means 2 sophomore roommates in a dorm that have friends from home over are now automatically a fraternity event. No other evidence or intention to do so is needed. This may not be and uncommon “standard,” but where it exists there is some allowances for reasonableness in both determination and response. Here there is neither.

The agreement uses all the language that a Greek community would want like “self-governance” and “student development” while paying lip service to the “rich and significant contributions to the quality of its student life.” However, when you look at the expectations you will see that those articulated principles are made meaningless with the way they define chapter activity and mandate the school’s response. They use the ideals of most chapters-that they are leaders living to higher standards-as an excuse to set unreasonable standards ensuring non-compliance in the future. Greek membership is treated as little more than an interest group (like chess club or Chinese dance) with no real regard for the fact that the lifetime commitment of being Greek means meaningful personal dedication to ideas that both support and surpass those of the university.

Do not be surprised when this draconian “agreement” eliminates cooperation between chapters and the school administration in an attempt to actually improve their chapter. Why would chapter leadership admit any problem when doing so appears to mean that they will be suspended for at least one semester? I am sure the response from Chico State would be “we wouldn’t do that, and of course we’re going to be reasonable” but there is nothing in the new provisions that suggests that anything other than 100% compliant behavior of 100% of the members will allow a chapter to continue to exist. While I think it would be a mistake, I firmly believe that each college and university has the absolute right to abolish Greek life. If they have reached a point where they believe the risks of having a Greek presence is not worth the reward (student retention, academic achievement, alumni donations, etc.) then they should shut it down. However, they should have the courage in their convictions to do so cleanly and openly.

Instead we are seeing campuses across the country doing what they can to make Greek life so untenable that students will either choose not to join or will invariably be the architects of their own demise. One need look no further to Trinity college forcing all Greek organizations to be co-educational, or the University of Central Florida beginning down this same road to get a glimpse of what’s ahead. I hope that students remember that leadership means both demanding good behavior from the people you lead, and also standing up against injustice when it surfaces.

Good luck to the chapters at Chico State. They’re going to need it.

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

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

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

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

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

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

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

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

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

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

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

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

There for the Grace of College Journalists Go You (Hopefully)

I should begin by saying that I absolutely believe that student journalists are at least as respectable as their “professional” counterparts and, considering the state of media in America, often more so. They are often the only students on campus who take the time to understand university culture, challenging or bringing to light issues that effect their fellow students. In fact, most administrators I know are concerned (if not downright frightened) that their actions are going to negatively draw the paper’s attention, and that the student reaction to it will be so strong that they will have to retract, rescind, or otherwise respond to the criticism in a way that will haunt them. (I, in fact, know some Dean of Students that are so terrified of negative publicity that they do everything in their power to limit staff contact with student media, and will completely change their positions to preempt any critical stories.) That is not to say that administration is shady or trying to get away with anything. On the contrary, almost everything that any administrator does is done transparently, and the theoretical, developmental, and pedagogical reasons for those actions easily given. But different students have different needs and values, so any action taken and placed under a microscope will please some, enrage some, and bore others. (For example, I tend to be pro-Greek life which some might construe as being “anti-GDI” or “anti-administration.” I don’t see it that way, but trust me-for every person that thinks CJC is serving a crucial need and advocating for students, there is someone who thinks we are trying to ruin judicial systems.) Don’t get me wrong, in my opinion administrators, faculty, and other professionals on a college campus are always fair game. It is what they do for a living and as long as the criticism is factual, it is fair. After all, on college campuses these people are the “public figures” and should always be ready to face the spotlight.

Unfortunately, I think a lot of college journalists feel that as long as what they write is “true” then it is completely fair to write, and do not consider the impact that it may have outside of the article itself. I am taking in particular about including the names of students or student groups in who do something “newsworthy” without thinking about the impact that article will have on their subject for the predictable future. Students are not pubic figures, and in the “Google age,” student papers become a “permanent record” that every other office, system, and policy avoid creating. That means that when someone is 40 and they apply for anything or meet someone new, the first record that will likely show up about them is the thing they did when they were 18. Let’s face it. Most of us don’t do that much that makes the papers. Even if including names or identifying information is ethical and it makes the story “better,” I do not think that people realize the social and professional cost for the subject of their article. What’s worse is that many times the names of these people or organizations are printed before all the facts come to light or a situation is resolved so that what follows a person is potentially a baseless accusation, or at the very least a half-truth.

I had one case that really brought this home for me. [Note: I am going to change the names and facts to protect the people involved (and to keep confidentiality,) but hopefully the point will not be lost.] A student, “Steve,” was accused of making hateful and racist remarks against black people in an email. Charges were brought against the student and, as the process was happening, the student paper wrote about the racist threats, printed excerpts from his email, and included his full name. It quoted some students affected by the email that were, understandably, hurt and outraged by the email. The paper contacted me, but I was not even able to confirm that a case was happening, much less what was happening in the case because of privacy concerns. Steve did not respond to the journalist because he has a pending hearing and didn’t want to do anything to make the situation worse. So the journalist wrote the article with the information she had—the email, the opinions of the injured parties, and a “no comment” from me and from the accused student. There were then editorials and follow up articles on the topic for the next several weeks as the case went forward. At the end of the case the student had whatever sanction was given, but he was not suspended or expelled. The paper went on to say how “nothing was done” to the student because he was still on campus, and asked numerous students how they felt about “nothing happening” to Steve. Understandably there was a lot of outrage because the people asked had no idea what Steve’s actual sanction was, and neither I nor anyone else associated with the case would tell them.

By the time the whole thing was over there were 8-10 articles/editorials about the situation with Steve’s name appearing in most of them, and those articles were cited or referenced by various people across the country (blogs, Facebook, etc.) So to the world, Steve was a potentially violent racist, and my office and the university didn’t care enough to do anything about it. While much of what was written was factually incorrect, the journalist and other contributors worked with the information they had and wrote what they believed to be true. Nobody did anything that was against the rules or even professionally unethical, but that isn’t the point. Steve’s name is out there and linked to “violent racism” without any ability to correct it, remove it, show another side, or even go into what happened. To anyone who Google’s Steve’s name, from now until the end of time, Steve is a violent racist who got away with horrible things while in school. That’s not something that a future employer wants to deal with, and if they are even willing to give him a chance, its not something he can explain because the actual facts are different than what is searchable, and why would anyone believe his version? Long after the official and confidential record of his actions is destroyed according to law and policy, the “unofficial” searchable record will exist. In other words, at some point it will literally be impossible for Steve to prove anything other than what was written in the article.

Including Steve’s name did nothing to help the story or highlight the issues. I am not saying that the journalists didn’t have the right to print it, or that readers might not have been more intrigued because they could Facebook Steve and put a face on the story. I am saying that journalists have the opportunity to defend all students if they remember that the people outlive the story, and that their fellow students should be allowed to atone for and move past the mistakes they made when they were in college. They cannot do any of that fully if their name remains engraved in stone. A journalist could still print the story, get the resulting outrage, accuse the system and school of refusing to act, and talk about the racial climate at the university without associating an identifiable person with the issue.

Student journalists should take it upon themselves collectively to refrain from using names of students or student organizations that get into trouble while at school. Doing so will not interfere with the freedom to write about the incident, the reactions to the incident, and every other component of the story. News is news, and I for one will never tell someone to hide the truth. However, the truth and a journalist’s dedication to truth should be tempered by a moral obligation to the good of each member of their society. In the case of college journalists this means doing everything they can to protect their fellow students up until the point where doing so interferes with the facts of a story. This is especially crucial when the matter is being handled within the school’s system (as opposed to the courts) so unless they included a name, the student’s identity would be protected by those systems. Protecting your fellow students should be as important as getting the story out. The truth does not require a person’s future be sacrificed, or that an organization’s reputation be tarnished. It requires understanding the big picture and how the events fall within that picture, and hopefully keeping in mind that the picture is always bigger than it first seems.

We Are the 5% Solution

We recently were featured in an article in The Dartmouth. The journalist, Ms. Amanda Young, discussed what we do and then spoke with their Director of Undergraduate Affairs, Mr. Nathan Miller, and Ms. Jessica Womack, a junior on Dartmouth’s “Committee on Standards (COS),” to get a sense of whether or not we are a resource that Dartmouth students should use.  It was a fair article with both Mr. Miller and Ms. Womack saying what you would expect from people in their positions.  Neither of them thinks that a student needs to use our services to get through the process; although they both seem to acknowledge that a student should use anything he or she can to maximize their readiness for the process.  While that position is inherently contradictory, since we essentially agree with them I thought I’d explain it.

To make the math easy, let’s say that, on average, 5% of college students get into some kind of trouble each year.  This trouble can be anything from the silly (violating copyright through “illegal” downloads) to the horrible (sexual assault.)  To make it even simpler, let’s pretend that Dartmouth has 2000 students so each year 100 of them get in some sort of trouble.  Ms. Womack and Mr. Miller both think that the process works well and that the support offered is sufficient for the students involved.  Let’s say they’re right, and give them an A on their process and the support offered.  That means that there is a 95% rate of what I call “sufficient fairness” where the resources and the process are enough to ensure that a student is prepared to obtain the best result possible. That would be an amazing system, and something that the people on the COS (like Ms. Womack) and the person responsible for the process (Mr. Miller) should be understandably proud.  In fact, at College Judicial Consultants we assume that every system is at or near 95% with the people involved in the process acting beyond reproach and really doing the best they can for students.

That still leaves 5% of the time where some additional help is needed or would help a student be more prepared.  Using the numbers above that means that at Dartmouth every year, 5 students could benefit from competent outside help.  In other words, it is completely consistent for the world to have judicial systems with an efficiency and customer satisfaction rate higher than almost anything offered anywhere by anyone, and also that the students subjected to that system could on occasion, use help and support beyond that system. We are here for that 1%, 3%, 5% or higher percent of the cases where the resources either are not sufficient or the student/student organization cannot use them fully so they are, in practice, not sufficient.  We are not trying to suggest that systems are out to get students or are happy when a student organization gets screwed over. We believe that systems of accountability are good things, managed by good people who work hard, and adjudicated by good people with the best intentions.  The problem is that sometimes that isn’t enough.

I can hear the defensiveness of some of our critics now “you’re just making up numbers!” Correct. I did. I have no way of knowing how many students that have gone through a process believe that they understood it all, did everything they should have, and would change nothing about how it went.   I do know, however, that if systems were perfect there would be no need for an appeal process.  If everything worked out as it should AND the students subjected to it were always satisfied with the result, they wouldn’t want to appeal because there would be no need. However, the appeals process is there for when a student believes that something very wrong has happened, and that the result is unfair. (I talk about appeals in an earlier blog so I won’t go into it more, but if you don’t see this point let me know and I’ll explain more.)

We love to assign blame in this country. If something isn’t working, or if there is a breakdown in something that does work, we love to point to someone and say “this is why it doesn’t work.”  If a student thinks the system is unfair, then it is that student or that fraternity that is “broken,” not the system. ($5 to the first person who can send me an article where the upper administration of a school, before any legal action began, said When we say that systems with underprepared participants are inherently unfair, we are not criticizing the people involved in that system (usually.)  We believe that most systems are inherently fair and that almost administrators and board members are trying to get the right result.  In fact, we count on it.  Our fundamental belief is that no matter how fair a system is the outcome will not be fair if the person subjected to it is not able to use it fully.  We are not challenging the fairness of a system when we say that.

Schools do have varying levels of support–some have advisors they train on the process, student advocates who help they prepare their responses, and other resources to help a student be prepared.  As I’ve said, in most cases they are probably fine and will be enough help.  However, when something is really serious, when a student or student group feels that they want someone who’s goal is to help them minimize the sanction against them or make sure they are not held accountable for something they didn’t do, when they want judgment free help, or when they just don’t trust the resources, we are here.  We have seen thousands of cases in different kinds of systems.  We have seen administrative hearings (run them in some cases,) all student boards (advised/created them in some cases,) boards made up of faculty, staff and students (trained them in some cases,) and “special” boards made up of more highly trained people to hear more serious cases (and served on them in some cases.)  We study the judicial system of every client’s school, and by the time the hearing happens understand it better than almost anyone. More than that, when we help a student or student group, our only obligation is to them.  We have no obligation to disclose and will never tell anyone what our client tells us, a promise that administrators simply cannot make. We also do not care about any political pressure on an office to deal with hazing, the anger of a faculty member about allegations of academic misconduct, the ego of a dean who believes that he should be able to control student behavior, or any of the other things that consciously or subconsciously shape a system. It is also worth noting that we encourage our clients to ALSO take advantage of the resources on campus.  Go to the counseling center, the academic resource center, your RA, and get yourself a hearing advisor so you don’t have to sit there alone!  Just don’t think that any of them have the combine expertise, experience, and knowledge that we do about Greek life, judicial systems, and case preparation.

If you have any questions about what we do and why we do it, email me.  We try to be as transparent as possible, so if we are doing something and you want to understand why, just ask. You can email me at DaveK@collegejudicialconsultants.com, or the office in general at Info@collegejudicialconsultants.com, or you can call us at (617) 287-8782.

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.

Fraternities, Sororities and the cultures that hate them.

(Before I begin this blog I should, in the interest of full disclosure, tell you that I was in a fraternity that was kicked off campus by our national in 1990 when I was a Delt at Tulane. (blurb in Spin from 1991 is here)  We were donkeys, we hazed, and I was a freshman.)

I’ve worked with fraternities and sororities since I went into student life 10 years ago.  Whether I was helping them with events or creating and supporting a judicial system, I have always been pro-Greek.  This meant not only doing what I could to help them thrive, but also pointing out the disparate ways Universities treat Greeks and non-Greeks.  At MIT it meant shining a bright light on the fact that what was unaddressed in the residence halls was enough to create a disciplinary response against a fraternity.  To be fair, part of the reason for that disparity was that the Greeks had their own discipline systems whereas there was not anything in place to address misconduct by a “group” of students without any formal affiliation.  But mostly, it had to do with the fact that Greeks are, and are on all campuses, easy targets.

While only 10% of college students are in a fraternity or sorority, almost every college student has an impression of Greek life and that impression usually has nothing to do with personal experience, but rather come from pop culture and the media.  Fraternities are seen as elitist groups of men who objectify and rape women while doing keg stands next to a beer pong table.  Sororities are filled with beautiful women who like nothing better than engendering eating disorders while being as vapid as possible.  Put them together and you have bullying and homophobic sociopaths who come from money and hate everything that isn’t part of their world. They haze, they drink, they are elitist, they commit all campus sexual assaults, and they cover it all up while drinking out of a 3-story beer bong.

This hyperbolized depiction Greek life seems pretty harmless.  Who cares if people not in a fraternity or sorority (or in college for that matter) think Greeks are jerks?  I know I wouldn’t have noticed a 33 year old giving me the fish eye for wearing my DTD sweatshirt or some rush T-shirt. In fact, there was something kind of cool about being in a “group” like I was with the “jealous GDIs relegated to eating cheese fries in the Rathskeller” while we had Widespread Panic play our rush party. Developmentally, this “us and them” mentality is completely appropriate when you’re 18-22.  So what’s the problem?

The problem is that the negative impression of Greek life continues with people who eventually go into student affairs and/or become faculty.  If you weren’t Greek, if you didn’t associate with many Greeks, and if you never had a reason to challenge your perceptions, then when you see someone wearing letters you make assumptions that do, in fact, separate them from other students and not in a good way.  You assume you know who they are, and no matter how often they do not validate those assumptions, as soon as they do, you’re convinced you were always right.  (For fun, point out a student that someone anti-Greek likes who is in a fraternity or sorority and see how often they are classified as “not being like the rest.”)  So when a member of a fraternity comes into class hung over, a woman in a sorority gets caught for plagiarism, or Greek issues make national news, that person feels comfortable with their prejudices.  And, over the course of any given year, some fraternity or some sorority somewhere is going to validate that prejudice.

So let me tell you from firsthand experience how that prejudice plays itself out when administration gets together to talk about student issues.  Say a student is transported from a residence hall for alcohol poisoning. The first question asked is “where was she drinking?”  If that answer is “in the dorm” nobody says “there must be irresponsible drinking and faulty management in the dorm.”  If, however, the answer is “at a fraternity house” that group is automatically reckless and has a problem.  If there’s a fight on campus, people ask “what were they fighting about?”  If there’s a fight in a fraternity house, people as “was there a party?”  and “were they drinking?”  If a student is drinking underage in the residence hall that student may have to go to a low level hearing and/or go through some substance education program. Nobody looks into where they got the alcohol, who else was with them, whether there was a party, if that party was within the rules, etc.  If there’s someone found drunk in a residence hall and they went to a fraternity party then the assumption is that they got drunk at that party.  There is little to no investigation into whether they pre-gamed, if they were doing drugs or on medication that resulted in their condition, or any other mitigating factors.  Instead there is an investigation into what the fraternity may have done or not done that allowed someone to become drunk. In other words, when a drug or alcohol issue can be connected to a fraternity, that fraternity is presumed to have at least contributed to that issue, if not directly created it.  Once a Greek organization is involved, there is something to blame for a problem because it is a lot easier than examining institutional issues that may be equally (and likely more) responsible.

I know this is going to sound conspiratorial, but as someone once said “just because you’re paranoid it doesn’t mean they aren’t chasing you.”  I believe a major reason people go after fraternities, in addition to the prejudice discussed above, is because it’s easy.  Most schools have staff in the residence halls who are responsible for creating a safe and healthy environment, promoting learning and development, and upholding community standards.  That usually means student RA staff, a hall director, an area coordinator, an assistant director who oversees the hall directors, and/or a director who oversees the whole thing.  If there’s a problem in the hall there is a disincentive to asking harder questions about the community because a failure within that community means that all the people involved have failed.  However, Greeks are often autonomous and without live-in support so if there’s a problem, it stops with that organization.  Plus, if things get really messy a school can tag in the national headquarters who can come and make the hard decisions.  This keeps their hands clean and keeps them out of the student paper while subjecting the organization to discipline without any of that pesky due process they are entitled to on campus.

Greeks are visable.  They wear letters that identify them, they hang out with each other, they may have their own house that separates them from other students, and they have their own governing bodies.   There are a lot of things that separate them from other students and people like focusing on those things.  What people tend to forget is that there is a lot more that connects them to other student because they are not just Greek.  They are engineering majors, athletes, theater majors, active in SGA, and every other thing that non-Greeks are.  A group of 8 friends live together in a residence hall and nobody looks twice.  A group of 8 fraternity men get an apartment together and it’s an “off campus fraternity house.”  20 friends go to a bar after midterms and they’re decompressing.  20 members of a fraternity go to a bar and it’s a “Greek function.”

In other words, a school has every reason to funnel problems towards the Greek community and away from those “entities” they control.  Plus, if you want to catch a fraternity violating alcohol policy or doing things that are technically “hazing” then you probably can.  I’m sure most organizations have at least a few members that violate policies on a regular basis, with some having more than others.  That being said, get me a group of 100 students chosen at random and see how much better they are.  I’ll guarantee they would have as many violations as any Greek organization.

Fraternities and sororities are handicapped because the policies they violate are poorly defined and/or commonplace across a college campus, whether or not the people doing them are Greek or not.  Nobody will support hazing when that hazing if forced consumption of alcohol, physical violence, or sexual degradation.  But what if it requiring someone to wear a pin or some other uniform that identifies them as a pledge?  What if it’s late night meetings or early clean up of a fraternity house? Is the stress that causes and the mental toll different than paper deadlines, midterms, or two-a-day practices?  Is the pledge pin different than forcing athletes to dress up the day of a game?  Is it different than requiring “business casual” at a student employment job?  Is a party at a fraternity house different than a dorm party?  If so, how?  Underage drinking, casual drug use, and even sexual assault happen across a college campus.  It doesn’t matter if students are Greek, athletes, or LARPers.  No matter what group you look at, you will find things you could go after but most groups aren’t looked at too closely.  People go after Greeks because they can, because almost nobody fights on their behalf once a problem is found, and because most of them have internal systems in place to address misconduct.  If most people are anti-Greek, then even when a system is controlled by Greeks, it can be used unfairly and against them.

That’s where we come in.  We cannot change the culture that singles out fraternities and sororities.  We cannot stop schools from going after low hanging fruit.  What we can do is help a fraternity or sorority navigate their campus judicial systems, negotiate with their national organizations, and help the alumni figure out the best way to help and how they should approach the administration.  Even with our help the system may still be unfair, but we can make sure a particular case isn’t. We have experts and leaders in greek affairs and people who know not only Greek and other organizational discipline systems, but also the institutional culture that takes advantage of them.  Contact us to see what we can do for you.

More on fairness (i.e. why I’m not talking to you in particular.)

Some former colleagues of mine (who shall remain nameless) wrote me about my last blog because they thought I was insulting judicial systems as a whole, and they took offense at what they thought was my aggressive tone.  I went back and forth with them for a while, but it quickly became clear that they could not separate themselves from their systems. They also could not understand how a system where the participants are not representing themselves to the best of their ability is inherently unfair; a fact I found particularly troubling.  I don’t think most administrators (and certainly not the ones I know) try to be unfair, but it’s inevitable the way things are.

I am obsessed with fairness.  I started College Judicial Consultants because I realized when students were either accused of something or wanted to hold other students accountable within the judicial system that the ancillary issues to the actual hearing made the process unfair no matter what I, or any other judicial officer, did.  I had the privilege of working with an amazing disciplinary committee filled with dedicated and compassionate people who were extensively trained by a devilishly handsome judicial professional.  They were thoughtful, took their time, and tried to understand each student who came before them.  In short, they were the best any student brought before them could have hoped for.  That being said, at least one out of every three students who came before them (estimated) was unable to either defend him/herself adequately, focused on the wrong issues, or made other completely understandable mistakes that either made or could have made the outcome completely unfair. The committee is not to blame, but the truth is what they were being held accountable for and the extent to which they were accountable were not solely based on the incident.  This was even truer those times when one student accused another student of something.  Most of these cases were sexual assault cases and the victim bringing the charges had to not only get past her own issues during the case and revictimize herself, but she also had to overcome sexual and gender issues of the people who listened.  Again, the committee was excellent, but very few of us truly understand our subconscious beliefs enough to identify them and not let them influence our decision.  (That’s a whole other issue that I’ll discuss later, so I’m really going to focus on respondents here.)

This is not unique to discipline systems.  Look at America’s courts.  If every person who went to criminal or civil court had the exact same amount of money and the exact same quality of attorney, our system would be as close to perfect as it could be.  A corporation could not outspend you, a clever defense attorney couldn’t say, “if it doesn’t fit, you must acquit” and get you off the hook for brutally murdering 2 people, you wouldn’t be executed if you were clinically dysfunctional, etc.  The facts of a particular case and all relevant details surrounding them would be the basis for the outcome, and I will take that system every time.  But that’s not the case so the poor, the uneducated, and the subordinated groups (i.e. those without equal access to power and privilege; the “oppressed”) face greater incarceration, have less effective legal defense of their rights, and are victims of unfair systems much more than their privileged counterparts.

The same is true in judicial cases.  An accused student in a disciplinary case is almost always accused by someone with more inherent authority than them, whether it the appointed authority of an RA or the positional authority of a dean or professor.  They almost always have less knowledge of the subject in contention than the person accusing them so defending themselves is an uphill battle. (See my earlier blog on fairness for more discussion on this.)  They do not know the system as well as the person accusing them since it is almost always their first time in that system where the person accusing them has either been trained in the system, has accused other people, or can call on colleagues with greater institutional memory to help them navigate the system.  Perhaps worst of all, they are compromised by the stress of the hearing, the potential implications of being found responsible, the shame that comes with being accused, and the fear of failing and having to face everyone you know.  That agitated state can make them seem cold, distant, and dishonest when they could simply be scared, and that influences a committee’s decision-making. It’s not intentional, it’s not personal, and it’s not a reflection on the ethics of any individuals; but it is unfair.

People may not be as concerned with fairness as I am, and that’s not necessarily because they are trying to be unfair.  When I ran a system I had to be concerned about procedural consistency, legality, regulatory compliance, institutional commitments, departmental support (or lack thereof), and messaging as well as fairness.  I did the best I could, and I believe others do the best they can, but many of those “goals” conflict with fairness as it relates to the individual going through the system.  (e.g. I could not point out where the committee may have made a mistake during an appeal.) Fairness does not mean that people in the system get what they want, but it should they get what they deserve and for the right reasons.

I don’t think any system can empower the students in the disciplinary process for many reasons and those reasons are almost never about the competency and professionalism of the administration. That’s why I created College Judicial Consultants-to help respondents and complainants have the outcome be fair. In CJC we can take all the time a client needs to help them because that is what we do, and all that we do.  We have no professional conflicts that limit our ability to assist a student to the extent they need, and college judicial systems do.  We say we give people their “best chance for the best result” and what that really means is the best chance for a fair result.

That’s not personal.  That’s fact.

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