College Judicial Consultants

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Archive for the tag “hazing”

The Road Confusingly Travelled–how an apple can look like an orange with college student misconduct.

One of the most confusing aspects of the college judicial/disciplinary system is how a college can adjudicate something that is a “crime.” If you’ve ever wondered how a college student can be “convicted” of assault and yet not be in jail, you are not alone. Colleges use terms for policies that are the same (or really close) as the state definition for crimes, and in some instances have the exact same language. That’s inherently confusing and I have known Deans and attorneys that can’t grasp that something can be a violation of a “crime,” and yet not mean that a student broke the law.  Let’s see if I can clear it up.Choose-a-path

The venue in which a case is heard and the standard of proof applied are different determine what a person is responsible for. With apologies to my law school professors for the simplification of my explanation, think of the world as broken down into 3 “courts.”

    • Criminal court—This is what most people think of when they think “crime.” In this court there are strict rules of evidence, extensive civil liberties, and the “state” brings the case against an individual. The prosecution (the “district attorney” or “DA”) must prove beyond a reasonable doubt that the accused (“defendant”) committed the crime with the necessary intent. This is an incredibly high standard of proof because if the DA is successful the defendant will be denied his or her liberty and will face incarceration. Think of this standard as >95% likely that the defendant did it.
    • Civil Court—If you sue someone for wronging you, you do it in civil court. In civil court the injured party/victim (“the plaintiff”) sues the accused person (“the defendant”) looking for a remedy for what he or she believes was damage done to him/her. The basis for this suit has to be among a group of torts (i.e. responsibilities or obligations that the defendant had to the plaintiff that were not met) and must show that the defendant did or did not do something, that action “injured” to the plaintiff, and that injury resulted in damages. The standard here is “clear and convincing” or somewhere around 80%. Once again, there are strict rules of evidence, and an attorney who speaks on their behalf almost always represents both parties. Civil courts can hear torts based on crimes with one of the most known examples being the OJ Simpson case where he was acquitted for a murder charge (i.e. he “didn’t commit” murder) but liable for a wrongful death tort (i.e. his actions lead to the death of two people.)
    • Campus judicial hearing—While schools all have a slightly different system, there are similarities that cut across them all. In general, a student (“the respondent”) is accused of violating a school policy by someone (e.g. another student, staff, or professor) called the complainant. All the complainant has to show is that there was a “preponderance of evidence” that the respondent violate a school policy. In other words, the complainant must show that it was more likely than not or >50% that a policy was violated. There are essentially no rules of evidence and in most cases the school’s only due process obligation is to have a system that is inherently fair and to do what they say they are going to do. So if $20,000 goes missing from a student club account, it is possible that the person accused of stealing it will be found not guilty in criminal court, not liable in civil court, but be responsible in a judicial case.

The “wrong” a person does can fall into one or more venues, and here is where it gets really confusing. When a student does something wrong, it is possible that that action can be against policy, a tort, and/or a crime. Without any exception I can think of, anything that would rise to the level of a prosecutable crime will also be against school policy. However, many of the things that are violations of school policy will not be prosecutable crimes even if the violation has the same name and similar elements of a crime.

A good, and fairly non-controversial, example of this is hazing. Almost every school has a “hazing” policy and many of them simply quote state law as their policy. This would imply that if you violate the hazing policy on campus that you’re violating state law, but that isn’t the case. Let’s say a fraternity has their new members (i.e. pledges) go on a scavenger hunt and while that hunt has some embarrassing elements to it, there is no theft, vandalism, forced consumption of alcohol, or injury to anyone. In fact, each pledge says it was the most fun they ever had and ask to do a similar thing again in the future. If you read the hazing law in most jurisdictions this would constitute hazing, but no DA is going to prosecute anyone for it. On campus, however, that fraternity would likely have a hearing and be found responsible for hazing. They might be sanctioned with probation or even a brief suspension for violating that policy. That would mean that they violated the school’s policy on hazing that has the same as the language of the state law, but it does not mean that they violated the law. They were not heard in criminal court, and there probably would not have been a guilty finding even if they were.

Does this make sense? On Friday, I will talk about how this works with the most controversial issue of all, campus sexual assault, and why a student who commits sexual assault on campus did not necessarily commit a crime and why a college campus may be the best place to hear these cases.

Let me know your thoughts or if you think I missed anything, and, for pete’s sake, don’t be afraid to like us on Facebook or follow us on Twitter.

Why We Are Better Than Hiring An Attorney (Exhibit A)

We understand the process; know how to prepare for hearings; can work with national organizations, alumni or advisors; we don’t threaten the university; we don’t make it about us; and we don’t make you humiliate yourself in public.  Plus, we’re not homophobic.

 

A Different Approach to Hazing On Campus

On April 12, 2012 Mr. Snowden Wright wrote an article in the NY Daily News he calls “In Defense of Hazing.”  It was written in response to the situation at Dartmouth’s Sigma Alpha Epsilon (SAE) chapter brought to light by Mr. Andrew Lohse that described activities that would shock the conscience of most people.  Having dealt with fraternity hazing in every capacity imaginable (I was hazed, I hazed, I helped students stand up against hazing, I held organizations accountable for hazing, and I have helped organizations defend themselves against charges of hazing) I imagine that the two positions in these articles will define the discourse in the foreseeable future, with most people understandably falling into Mr. Lohse’s camp.  It is hard to defend Mr. Wright’s article as is written, but I do think the fact that his article is not wholly without merit should be discussed.  The problem I see is that hazing is not a “thing” with a singular definition as much as it is a continuum, and there should be some latitude for allowing adult students to make informed decisions even if those decisions are not in accordance with public values.

I do not want to be misunderstood here:  I think that hazing that intentionally causes physical or lasting mental harm is criminal.  I think hazing activities that are done against someone’s will, especially after that will is voiced, are criminal.  I think that forced consumption of alcohol is inherently dangerous, and is therefore criminal.  I think that thoughtless hazing, even if not inherently dangerous, pretty much ensures that a fraternity (or sorority) declines and the organizations is fragmented.  It is counterproductive to team building, and becomes mere sport for those hazing rather than an educational experience to increase the connection of an individual to a fraternity’s values and brotherhood.

I do not, however, think that “requiring” someone to endure activities meant to be challenging, funny, or that test someone’s resolve for joining an organization for life is inherently bad. By treating hazing as a singular thing where the only “positive” action is to not do it, we do the same thing we do with drinking.  College students, and most adults, can differentiate between “Beam lines” where a group of 9 men have to finish a 5th of alcohol by the time it reaches the last brother, and wearing shirts with nicknames on them.  Pretending otherwise forces hazing into the dark corner of private spaces where the people doing it cannot seek help to ensure that their actions do not fall into the reckless or criminal categories.

There are many people who never joined a Greek organization and for whom the idea of being woken up at 3 am by a voice on the phone shouting “CREED!” at you seems ridiculous.  The idea that you would stand in a room of people you call your “brothers” as they yell at you and pelt you with bread rolls or green beans as you try to get the names of the founding fathers right, seems inane and against the very notion of “higher education.”  We had pledge pins. We had nicknames. We cleaned the house after every party by 9am. We had midnight meetings at the fraternity house. We had to clean bathrooms and the (much grosser) stove vent hood.  We were always “on call,” and if anyone ever called and asked us a question or needed us we had to do it…if we wanted to be in the fraternity.  And we did.

And therein lies the crux of the problem.  For some reason we do not think that 18 year old men and women have the ability to say “no” to things they find objectionable.  Most laws and policies on hazing state that the willingness of the people hazed to the hazing activities is not a defense to the hazing.  That clause is there to ensure that the victims of horrific acts are not pressured into saying they did it voluntarily, and to protect them from harassment and bullying.  It’s a good clause.  Unfortunately it overshoots and makes it so that NO activity that is determined to be hazing can ever be defended.  If you get accused of “hazing” for something ‘light’ (e.g. a photo scavenger hunt) then the only defense to it is to lie.  Pledges saying “it was the best time we’ve had” are not a defense. “The brothers did it too” is not a defense.  If anything called hazing happened it is hazing, and all of the sudden you’re in the same category as the students in AEPi from Boston University. So you lie.

And what about drinking?  As I said, I do not believe that people should be forced to drink…ever.  If someone is drinking, and they had enough, then not only should they be able to stop, but the people with whom he drinks should encourage stopping.  However, we all know there are some big drinkers out there.  (Whether or not there should be is a totally different discussion.) They are in fraternities and sororities.  They are on the rugby team.  They are in the military.  They go to law school.  They are teachers.  They are priests.  They were me and my friends, and when I went looking for a fraternity I looked for guys I thought were interesting, that had women I liked who liked the fraternity, and that liked to have a good time because that’s what I wanted.  It’s why everyone in my pledge class joined, and so when the challenge was put out there on a Saturday afternoon to do a “kill a keg” against brothers we had to rock/paper/scissors to see who would have to sit it out.  We were pledges but they were brothers so how was our participation hazing while theirs was just a stupid decision?

I think Mr. Wright tries to defend activities that are hard to stomach (no pun intended) but he does make a few points worth noting.  First, we need to separate from the definition of “hazing” those things that are normative behavior of at least a subset of the student population.  Let’s stop pretending that making people wear pledge pins or clean the place they hang out is the same thing as duct taping them in a room, beating them and throwing fish sauce on them.  Let’s stop pretending that making the 10 newest people in an organization work a formal is the same thing as throwing feces at them.  And let’s stop pretending that the definition of “forced” activity should be defined by the person who incorrectly understood his or her limits.  It’s called paying your dues, training, preparation, or 100 other euphemisms in the other contexts in which it’s found.

(This is the part of this blog where I feel obligated to remind everyone that I am NOT condoning all the stuff I mentioned above like beatings, dangerous exposure to the elements, forced criminal activity, forced consumption of alcohol, etc.)

Every one of the “broad” hazing types is found in “adult” life.  When you start in student affairs you will likely be “on call” at least a few times a semester.  That means you carry a cell phone with you at all times and, no matter when someone calls you, you have to be ready to do whatever is necessary.  If you work in student activities you’re probably the person who handles “alternative programming” which means you work weekend nights until someone new comes in and you no longer have to do it.  If you work in a blue-collar job or you’re a server you get the worst shifts. When you play a sport you don’t get a “choice” about calisthenics.  You do wind sprints, you go to the gym, you do push ups, and you frequently do them until you either throw-up, or wish you did.  When you go to college, at least once a semester, there’s a time when every class you have schedules the biggest tests at the same time so you have to lose sleep and memorize extra information so you “pass” and can move on (i.e. finals.)

It probably seems stupid to compare these things to hazing because they are “part of the job” or “what you signed up for.”  They are usually for a higher purpose (e.g., student safety, vocational advancement, more money, etc.) and people know what they’re getting into.  The other people doing it have already “paid their dues,” and if all of the sudden we insisted that the new server got every holiday off and the 10-year person had to work them it would be unfair.

So why can’t 18 year old men and women make the same choice?  I know enough development theory to understand that they are not in the same place as 1st year legal associate who has to work 70 hours a week to bill 40, but to me that means they need reinforcement of their right to say “no” and “opt out,” not that the should be protected from choice.  It means that Greek life would be better served if we came up with broad “permitted hazing” categories, and an organization could talk over their plans with the people who know the most about the topic.  When someone was recruited by an organization, the fact that there will be ordeals and what those ordeals are would be part of that recruitment.  Do you want to join an organization that has no late night or weekend activities?  No problem!  Here are 2 that do that.  Do you like to do those things Mr. Wright characterized as being like “Fear Factor?”  No problem!  Here are 3 that push you physically and enjoy trying to gross each other out.  Do you like being hit and forced to drink until you might die?  Sorry, we don’t have those because the ones that did were rightfully closed.

We let 18 year olds join things they know might kill them (the military, Alaskan fishing boats, the porn industry) but we can’t trust them to speak up in a system that would vocalize expectations, have an established method and procedure of opting out, and trained professionals to oversee the activities?  Of course we can.

So why don’t we?  The answer, I believe, is simple.  Law suits and insurance costs.  It’s much easier to ban an activity than it is to try to nail down some acceptable limit, if your goal is to prevent the school (or national organization) from getting in trouble.  So schools say they have a “zero tolerance” for hazing and, when they catch an organization doing some of the lighter stuff they act with furious vengeance, but that doesn’t actually save them from anything.  Even if they were as strict as possible and that was effective, it doesn’t shield them from liability.  What it does is forces the worst offenders to hide themselves even more effectively.  Administration does not work 24 hours a day, and even if they did they could not be everywhere at once.  Let each school determine its own lines and enforce them.  We rate movies, TV and video games, and “obscenity” is not every piece of skin shown on TV.  Sure, some college students are going to agree to do things you would have NEVER done, but that’s their choice.  They should be protected from surprise, and from inherently or recklessly dangerous activity, but everything else should be up to them.

That being said, SAE at Dartmouth did some nasty crap, and kudos to Mr. Lohse for saying “enough.”

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Greek follow up, Youngstown KAP, and a school’s obligations

Last week(ish) I posted that I believe Greeks disproportionately are targeted by administration and punished for reasons that go beyond the actions of a fraternity or sorority.  Because I believe that I also believe that the unfair use of what might otherwise be a fair system makes that system unfair.

I got some really good and thoughtful feedback pointing out that Greeks sign up to be held to a “higher standard” than non-Greeks, statistical evidence that points to Greeks doing more “high risk” behaviors than non-Greeks, and other things.  I do not disagree with any of those points and am grateful that people took the time to submit them.  Each time, however, I had to remind people that I never said the Greeks held accountable do not deserve it.  What I said was that, given the disparate (and I believe unfair) scrutiny that there are many things for which Greeks are held accountable that non-Greeks (as individuals or in student groups) are not.  People can deny this all they want, but I know for a fact that when administrators are looking for bad behavior they look to Greeks first and sometimes stop there.

I also got some other Tweets and comments that were not as thoughtful.  They pointed out sexual assaults, hazing deaths, drinking deaths, and the like, and claimed that I was saying it was unfair for Greeks to be held accountable for their role in those horrible events.  I wasn’t.  I think that any organization that physically abuses, forces alcohol consumption, or tries to completely break down their new members psychologically is a bad organization.

One of these people sent me this article about some horrific nonsense going on at Youngstown with “you defend this?”  What happened (according to the article) is that 2 students were beaten so severely over several days by fists, paddles, and wire hangers over several days that they had to be hospitalized.  That’s some animalistic behavior and criminal charges are rightfully being pressed against the individuals involved.  Their defense attorney actually said, “the victims repeatedly returned to a Youngstown home knowing the initiation might again be physical.”  That’s the dumbest thing I’ve ever heard, but there are a lot of people who read my last blog and are trying to lump me in with that guy.  Don’t! My issue is not, and has never been, holding a person or group accountable for what they do.  My concern has always been with making sure that the accountability is actually based on what happened, that it addresses the problem, and that it makes whole the person, group, or culture affected.

At Youngstown the school kicked them off for 15 years with a 10 year probation upon their return.  I’m going to assume, for the sake of this entry, that the group has been in trouble before so that they can’t claim historical innocence.  15 years.  Really?  4 years is a complete student cycle, and if you wanted to include potential graduate study 8-10 years is enough time for every one of them to leave with their PhD.  Even assuming that when they are working their dissertation at 27 they want to hit someone with a hanger and risk arrest and losing everything they have and that they have not developed as people at all, after 10 years and there will be nobody at that school with an even tangential relationship with the group that did these horrible things.  So why 15 and why 10 years after that for probation?

Bear with me for a second.  If the national organization is a good one (as I believe it is knowing just a little about it) and you are open to the ideas of them returning at some point then why wait so long?  If the national organization is bad then why leave the door open for their return at all?  Surely there is a different organization that could come in and do better.  I completely get making them go away until the last of them graduate, but why after that?

While it seems as if the school is taking a “hard stand” I think it’s actually the opposite.  The hard thing to do would be to either kick them out forever and tell the national that they are not trustworthy enough to bring a new chapter forward, or to kick them out until the current students (or at least most of them) are gone and then welcome them back through a school/national/student partnership.  The later would say that the school believes in the values of the national organization and does not want to deprive future students of access to those values, but that they were going to work to ensure that there isn’t a repeat of this felonious behavior.  Instead they say “eh…15 years.”  How does that not seem arbitrary?  After 15 years none of the administrators will likely be there, the President definitely will not be, the police should be a new crop, and the students will not remember that the organization ever existed.  So why put off the truly hard decision of whether KAP should exist at Youngstown until people with no connection to these events are in the position to decide?  While that sanction is effective in making them “go away” I do not think it is in the least bit educational or restorative.

Where I tick off student affairs folks is that I actually think they should go a step further if they really want to address these issues.  Looking at that case I, of course, see the crimes committed and sympathize with the poor students who were so viciously beaten.  I also wonder if there is anything going on at Youngstown, or with the student population who attend, that makes their students more inclined to both beat and accept beatings.  Is there a hostile undercurrent?  Is violence promoted?  Does this violence translate to other areas like sexual assault and hate crimes?  Or was this truly an isolated incident that was a perfect storm of violent sadists gathered under one roof?  I find the later much less likely, but I cannot know if I’m right without knowing more about the student population.  Either can they.

What I’m trying to say is that I believe that the way to combat the behavior we typically attribute (and always look for) in Greeks is to take a campus wide approach to them.  We need to examine the campus climate to see what the acceptance of rape myths is, what the tolerance is for bad behavior, what the bystander attitude is, and other really tough questions.  I had a colleague who had a grant to examine violence and alcohol at a top rated institution and I will tell you that there is a REALLY big problem on most campuses.  That problem will not be solved by pointing fingers at fraternities and sororities and thinking you’ve addressed it.  If you have a campus that openly discusses these issues, that has student buy-in on promoting a positive culture, and understands the failings and openly works to address those failings then you will have a culture that does not see an acceptance of “animal house” behavior, forced alcohol poisoning, “rape rooms,” or hazing.  Of course that means looking at your residential culture, the culture of the athletes, and the behaviors of your hundreds of student groups, and that’s a HUGE undertaking.  If Greeks really should be held to a “higher standard” then I think the campus should do what it can to make the normal standard as high as possible.  Do you want to tell me it isn’t easier to just go to the house with Greek letters on the door and look for underage drinking?  When a fraternity is accused of supporting underage drinking and they point out that it happens across campus, how do you educate them by saying “yeah, but in this case we care”?

Afterword:  I’m supposed to be promoting what we do as I talk about these things and I haven’t done a good job in this one.  People like to bring up extreme cases when they challenge what we do.  “You would defend KAP after they put 2 kids in the hospital?”  Yes.  We would because they are entitled to present a good defense and helping them do so supports the system by allowing the board to do their job properly.  However, most cases are not that.  Even the hazing cases tend to be things that are seen elsewhere on campus.  Underage drinking and drinking games?  Yup.  Name-calling and ridicule?  Yup.  Scavenger hunts, dumb t-shirts, interruption of sleep and eating cycles?  Yup.  So why do I care that these behaviors are only addressed in Greek life?  Sure when you say “hazing” you can mean Youngstown, but you can also mean forcing a group of 12 men to sing to a sorority on a different campus or who have to salute when they see a brother.

We help an organization be reflective about their own actions, understand them in light of campus expectations and societal norm, and articulate what happened in a way that conveys that information to a judicial board.  We can help an organization work with their national if they get involved.  We can work with the alumni chapter and other stakeholders. We can help an organization create an internal judicial process to hold its members accountable.  We can help develop an action plan to address “problems” in the house to present to the Greek affairs office.  We can essentially do anything that will help you deal with any judicial issues, make any necessary changes with your current membership, and develop an action plan to help make sure that your chapter does not find itself in that position again.

I should also say that if you think you might get in trouble you should think about hiring us ahead of time.  Hire us 60 or more days before you get in trouble and we will represent you if anything does happen during that calendar year for a lot less.  Contact us to talk it over and see if we can help.  I’m sure we can, and the earlier we get involved in the process the more we can help.

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