College Judicial Consultants

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

Archive for the tag “judicial officers”

Getting Better Advisors–Why Administrators Are Wrong About Us, And Why That Mistake May Hurt You

At College Judicial Consultants we have tremendous respect for judicial officers, Greek advisors, and other administrators, but believe they should be less mistrustful of outside help during the campus judicial process. When that help is an attorney for the non-legal judicial process, that help can indeed hurt a student and cost the student thousands of dollars. While we understand that mistrust, we believe that when you look at the support offered on campus, we are not truly outside.

Fact 1: Every student discipline system allows a student or organization (“respondent”) to have an advisor, with most limiting that advisor to a non-attorney from the campus community.

Fact 2: Only a handful of schools have an organized advisor program where they train a few faculty and staff in how the system works and make those people available for students going through the process. These advisors are well intended and may help a few students each year. However, their job is to make sure the student understands the process and is connected to campus resources; not to “help” the student minimize the consequence or negate false accusations. In other words, they are there for emotional and psychological support only. That support is REALLY important (in fact we encourage every client to take advantage of it) but that type of advising is less than a respondent needs when they are innocent or the stakes are high.

When a respondent goes through the disciplinary process there are two essential parts of that process the respondent needs to understand—the procedure and the content. Judicial officers often say that their system is “different” and thus requires someone with specific training to understand it. While this is technically correct, ask your judicial officer if he or she can understand other systems and I’ll bet you $5 they won’t have a problem doing so. Judicial systems have slight differences, but they are similar enough that there are best practices, model codes, community assessment models, and uniform standards. More importantly, any system they have must be explainable AND in writing in a way to make it understandable. When you meet with the judicial officer he or she will explain it to you and that explanation is essentially the same “training” the advisors from the school receive.

The much more important part is developing the content where the respondent gets the chance to tell their side of the story and present evidence to show how their version is correct and the accusations are inaccurate. It is during this part of the process where respondents make mistakes that can get them found responsible when they are not, and make their sanction worse than it needed to be. It is in this arena that our consultants are miles ahead of any other “advisor” you will get from the school for two very important reasons:

  1. The least experienced of our consultants has seen at least 10 times the number of cases as the most experienced advisor from your school (with that number closer to 50 times more.) This means that your consultant has seen literally hundreds more responses than anyone you will find on campus, and are much more likely to have seen a case with similar facts to yours.
  2. Our consultants’ only goal is to make sure you are not found responsible for something you did not do and have the smallest consequence possible for what you did. We are not faculty who have opinions about plagiarism at your school. We are not administrators who have had to deal with “problem” students. In other words, we do not have any reason to protect the school, the community, or the system.

In other words, we are like the best advisor you might find on campus but with vastly more experience, and without any agenda other than giving a respondent the best chance for the best result. Why would anyone on your campus not want you to take advantage of that?

 Contact us for a free and completely confidential consultation to go over your case and see what we can do for you.

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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.

Why We Should Be A Judicial Office’s Best Friend (and Why I Don’t Care If We Aren’t)

I am a firm believer in accountability. If you do something you know is wrong, and you get caught, I do not want you “getting away with it.” When I was at MIT it used to make me crazy when someone who did something horribly unethical (like cheating on a test) went unpunished because the staff or faculty who caught them chose not to do anything. Sure, it was hard for me to be part of a system that meted out different punishments depending on who caught the student, but the worst part was that I would have to put students through our process who were often much less responsible than the others, and then watch them frequently work themselves into a suspension. I know that I can’t do anything about faculty and staff autonomy (nor do I think everything needs to be punished), but what I can do, and why I started College Judicial Consultants, was to ameliorate the difference in response when someone is brought into a system.

I was heavily involved in judicial affairs and believe that a good system can be transformative, really force someone to be reflective, and, ideally, help them get to a place where they won’t make the same mistake again. Sure, there are some people who are just dirtbags and the only thing they will try to learn is how to not get caught, but for the most part these are good young men and women who, for one reason or another, made a bad choice. Most of the time nobody else got hurt. Most of the time there isn’t a victim or intended victim. Most of the time it’s a person who had a melt down, and as a consequence took a shortcut. That being said, I believe academia should be an idealistic society that people strive for, so when someone violates the foundation of that society they should be accountable. The actual form of that accountability doesn’t matter really–fail a test, fail a paper, have a record, be on probation, be limited in the types of roles they can have within that community, etc. Some may even need to be sent away for a while to really come to terms with what’s important to them, and develop some coping tools to help make sure that a similar thing doesn’t happen again. The most important thing here is that the extent and nature of the accountability should fit the act and the actor—more than is needed for either is inherently unfair.

But how does a judicial board learn what sanction will be the most appropriate in each case? In reality, there are usually two ways that a hearing board can get to know a person and assess what happened. There is the written part (the complaint and the response) and the hearing. Assuming they carefully read and digest the written part, and at hearing ask every question worth asking, that usually takes around two hours (not counting deliberation). Two hours spent getting to know a person and understanding what makes them tick so the board can understand what went wrong. Two hours of reading a paper written while overcome by nerves, regret, and self-doubt, and 2 hours of watching some scared person in a room trying to speak to strangers about what is likely the lowest point in her or his life. Considering how little time that is, boards in general do a really good job and I remain impressed by the different ones I’ve come across over the years. Because it’s a hard job the boards are given things like school precedent and policy guidelines to help them make the best decision they can. Even then, it’s two hours to decide on something that will affect someone for the rest of his or her undergraduate career (and in some cases longer.)

Here’s the surprising part: two hours would be enough if the students going through the system were able to participate at their best.

A judicial officer should ideally be able to guide someone, or refer a person to someone who can guide them, through every step so that they can be ready to give the board enough information to make an accurate decision in the time they have. However, as I’ve said before, as long as a judicial officer is responsible for the system and accountable to the school, they cannot risk doing anything that could be seen as skewing a hearing one way or the other. As long as there are two parties (and there are always at least two parties) the “other” party would likely find the system unfair and that is the foot in the lawsuit door. Also, even if the judicial officer will help the student write his piece, there are potentially going to be facts that may not be relevant, but about which the judicial officer is obligated to act (e.g., drug use.) Even if the judicial office can be completely neutral, act only on what the student tells them to act upon, and can help them write the best response, the student has to believe that so that he or she can provide the right information. That’s a lot to ask of everyone, is, frankly, almost impossible, and judicial officers know that’s impossible so many of them have created resources to help students “outside” their office.

There are peer advocates, faculty/staff advisors, and other similar resources that students can use. Some of these are really good, but they are inherently flawed if the intention is to place the students on equal footing. Even when there is a really good advocate/advisor, their experience is with one or two cases (or even 10) in front of different boards with little likelihood of the cases being similar (e.g., fighting vs. plagiarism.) Plus, no matter how small the connection, the resources and the system are connected which, at best, will give a student going through it pause when it comes to being completely open. As an example, I had a student go through my system who was being accused of dealing marijuana that I’ll call Mark. His faculty advisor was a pretty big deal and intimidated a lot of the administration (which was only relevant leading up to the actual hearing.) He decided to use his academic advisor as his hearing advisor and that guy made my life hell advocating for Mark. He called my office yelling, accused me of racism (turns out Mark was Latino), and threatened to create a committee to look at the way I do things. He was sure the guy was innocent and when he helped him write his response it was an aggressive testimony to that innocence. It challenged the police conduct, subsequent investigations, and, naturally, me. It said that just by bringing the case to the hearing board we were risking ruining the life of this innocent man, and that we should be ashamed.

While this type of advocacy might have worked in some cases, the problem was that Mark was responsible. He was dealing, but he was dealing to friends so that he could make a little money and smoke for free. I knew that, the police knew that, and the board eventually learned that (because they were excellent). But now, because he had been so adamant in his denial, when he revealed his responsibility he became a liar. When he then tried to tell the board he “would never do it again” they had no reason to believe him. I do not know what dealing to his friends would have gotten him, but lying about it got him suspended for a year and cost him a substantial scholarship.

The problem is that Mark was stuck. He could go to a stranger for help and not know their obligations or motives and trust that he would get good advice, or he could go to someone he knows and with whom he has a relationship who would fight for him. Mark chose the later, but when he was talking to his advisor he couldn’t bring himself to admit he was buying in bulk. He admitted to occasionally smoking, but he was not willing to risk his relationship with the professor and that lead him down a path he did not need to take.

We are the solution to this type of problem. We know judicial systems, we have no obligation to anyone other than the client, and we can help the client maximize the impact of what gets seen in those two hours so that the board has the best chance to fully understand what happened. In other words, we give a student the tools he needs to get the right result in a system that works. The judicial officer handles the system and we make sure that the people using it are doing so correctly. We filter out redundancies, red herrings, assumptions masked as facts, bad tones, surprise and other elements that affect outcomes. We make it as pure as possible and then trust that the board hearing the issue does their job correctly so that the accountability matches the act AND the actor. We are the oil that stops the gears from grinding, and we are good at what we do.

Yet, when I tell former colleagues and faculty about it I am frequently met with “you’re going to help students get away with X” or “you’re going to teach them to beat Y!” Most of them, even when they aren’t negative, are cold to me because of what I’ve created. I get it. They have a hard job and the thought of someone “cheating” the system makes them angry. But that’s not what we’re doing. What we do is make sure that someone going through a good system gets the right (i.e., best for them) result for what they did wrong. If a judicial officer has done his job and has the support of his school, he has nothing to worry about. The point of a judicial system is to educate (as opposed to punish) so if someone gets less of a sanction than they could, but learns the same lesson everyone wins. (I would be HORRIBLY remiss if I didn’t point out that, to a person, the judicial officers I worked with are extraordinary, care deeply, and run good systems.)

However, if your system is flawed, biased, or unfair we will probably reveal those flaws. If a student’s rights are violated we will help our client point it out. If the other side is making it personal and trying to use their position to intimidate, we will help our client identify that, point that out, and demand equal treatment. If procedure is inherently unfair or not followed, we will help our client point it out. In other words, if your system is unfair we will do what we can to make sure the student doesn’t suffer because of it.

While we do not work at your school, we are essentially experienced advisors who understand the pedagogy and development theory in discipline systems and we use reflective interviewing to help the students do the right thing throughout the process. (Plus we talk to the parents!!!) Using us should allow the judicial officer to spend less time dealing with minutia, and free her up to focus on improving the system, doing programming, expanding your alternative resolution offerings, etc. We should be a judicial oficer’s best friend, and I’m always amazed when people can’t see that. Well, I’m not amazed when the people in positions of authority knowingly trample student rights and allow unjust outcomes can’t see it, but so far those have been the minority (although, that minority is a much bigger percentage than I anticipated.)

So, judicial officers, we are here. We have the same goal. We want a fair and impartial system to apply the facts of a case to each individual student to decide if anything happened which violated policy and, if so, applies the proper sanction. If we get involved we free you up to focus on the reasons you probably got into student affairs in the first place. Use us. Recommend us to those students who are either in serious trouble, or who keep asking you for things you cannot do. We know we can be good friends, but if you think we’re a threat then we probably are…and that’s okay. It’s probably your fault anyway.

The innocence problem.

When I began College Judicial Consultants I wanted to offer the best services possible for students going through their judicial process while still respecting the systems and the people involved in supporting that process.  In other words, I wanted to honor my former colleagues doing a very difficult and thankless job while making sure our clients avoided any and all unnecessary sanctions for what they did.  This seemed like a fairly straightforward goal, but I have run into a serious problem with about half the clients I’ve had—they have been innocent.

 

Why is innocence a problem?  It shouldn’t be, but judicial bodies are made up of human beings who enter into hearings with certain expectations.  These expectations place an unacknowledged burden on respondents when the complainant is a member of the staff, faculty or students in appointed positions of authority.  The only protection from this type of bias is if the judicial office(r)s are vigilant in recognizing and combatting it where it occurs.

 

Picture this:  You are a judicial board member who hears about 2 cases a week for an entire academic year.  You know there are many cases that don’t get to you that are handled by the administration, and you’re proud of the opportunity to serve your college by hearing the “more serious” cases.  The day before the next hearing you get a case to review.  A faculty member in an advanced particle physics class accused a student of cheating on an exam.  While the faculty member did not see the student cheat, one of the answers on one question has 3 lines of a mathematical equation that are the same as the person next to him and those lines have a common mistake.  In his experience and in his expert opinion, that means that someone cheated.

 

The professor spoke with both students and, after meeting with them, believes the student in question is the one who copied the answer and the other student was unaware of that copying.  The professor also comments that during the meeting the accused student was defensive and repeatedly denied the cheating, but seemed nervous and overly agitated.  As a response, the student respondent vehemently denies cheating, points out his grade in the class (a B+), states that most of the question was dissimilar, but cannot offer an explanation for why that part of the question was the same.  In support of his position, the student brings in proof that he studied and the testimony of people sitting around him in the class who will testify that they did not see him cheat.  The other student excused from the accusation also testifies that he did not see the respondent cheat.

 

In the above example I assume that the professor honestly believes that student cheated and will calmly and confidently reiterate that fact as well as his belief that such an event can only have occurred if one student copied off the other.  The student, on the other hand, repeats the information in his response, is flustered, and acts very nervous throughout the hearing. Your system has a “preponderance of evidence” standard which means a student is responsible if he is “more likely than not” responsible.  What do you do?

 

In the above example a board member would have to decide that the professor made a mistake or that the student is lying.  If you believe the student isn’t lying then the professor has to be wrong, and if the professor isn’t wrong then the student had to cheat.  Despite that, this doesn’t come down to a coin toss in practice, however.  Board members do not operate in a vacuum, and the professor comes to the table with a respect and expertise that cannot be matched by the student.  It’s human nature—when in doubt trust the expert.  You should listen to me when I make suggestions on preparing for a disciplinary meeting, but my medical advice is useless.

 

As I’ve said before, I believe in the preponderance of evidence standard in judicial hearings.  I think it is the best standard if the process is indeed to be educational because it allows a board to sanction in a way that addresses the specific needs of each student in question.  However, when a vast power differential exists between the two parties, the intangibles, which oftentimes determine responsibility, will always favor the one with more power.  (i.e., Social justice 101.)  The power difference in these cases is exacerbated by other factors I have found common with most boards.

 

First, they trust the judicial office(r)s to weed out bad cases.  In other words, the judicial office(r) should make sure the right parties are there, that all procedural requirements have been met, that there is a prima facie case, and that the board has complete information.  While that is almost always done the very act of doing it creates an implied endorsement of the case as “valid”.  While this doesn’t mean that the board will always agree and find responsibility, they board trusts that they wouldn’t hear a case if there wasn’t a chance of responsibility.

 

Second, they assume that accused students have more reason to lie than faculty, administration and police.  I want them to believe this because it is usually true, but the problem is that the only options are not “lie” and “not lie.”  There is also the possibility that the “expert” has made a mistake or has been either fooled by someone into thinking they’re innocent or misinterpreted someone’s behavior as indicating guilt.  Let’s face it, people respond to different personalities differently.  What’s confident to one is cocky to another.  What’s nervous to one is guilty to another.  When there isn’t hard evidence, much of the testimony consists of subjective (if educated) beliefs.  Those beliefs need to be challenged and it is unfair to expect student board members to challenge them when those in the position to do so did not.   The judicial office(r) should be the one to do so, but the power dynamic between staff and faculty often stops that from happening.  As a judicial officer you want faculty to employ and trust your system, and if faculty feel they are “on trial” they will simply avoid the system.  While that is a tough dilemma for the administrators involved, they must put the rights of the accused student first.  Every time.

 

Third, their job is to support the system, the school, and the policies that govern them. This is another statement that is almost always positive in practice, but I think it needs to be approached differently.  When I used to train judicial boards I spent a lot of time talking about how they could navigate the intangibles such as body language, demeanor, experience based likelihood, etc. Knowing how to do that would allow them to make tough decisions because we instinctually can recognize deceit and, with training to develop those instincts, it can be a useful tool. I would then emphasize that their job was to assume innocence of the accused student unless the complainant make a convincing case.  In other words, they support they system by holding violators accountable, but also by not holding accountable those people innocent of wrongdoing.

 

Fourth, there is almost no discussion of the overwhelming difficulty of disproving a negative claim against you made without evidence.  I would spend a lot of time in those trainings talking about how hard it was to disprove a negative accusation and would have them make accusations against the person next to them about a character issue.  (e.g., “You are a terrible boyfriend.”  “You don’t work hard.”  “You like to lie.”)  Then I would have the person disprove that statement to help them understand that accusations, even strongly believed accusations, needed substance behind them.  If there is actual evidence the respondent can respond to that, but opinions and beliefs are a different story.  As a judicial officer you need to be able to tell people, no matter their position, that the evidence is not enough if they cannot support their claims.  I don’t mean you substitute your judgment for the board, but I mean you have to understand the psychology involved to make certain that, once you strip the complainant of the advantage of his or her authority and expertise, that the accusation must meet the burden.  If all that’s left is a coin toss, it doesn’t.

 

Being a judicial officer is a thankless job.  Most students don’t know who you are, and the ones that do likely think you’re some sinister heartless robot sitting in your office dying to punish students.  Other staff and faculty, if you are lucky and they have any respect for your system, see you as an ally who is there to help them enforce rules and hold student accountable for the misconduct they commit in their areas.  If they bring a case to you and the student is not found responsible or the sanction is stronger or weaker than they wanted, then you and your system are flawed.

 

Despite this, most of the judicial officers I have known are some of the most compassionate and empathetic people I’ve met who constantly work to improve their systems for all parties involved.  Unfortunately, since starting College Judicial Consultants I have also seen many people who are at best careless with the rights of the accused and at worst actively trampling those rights.  The worst part is that the system, like any other societal system, does not give an opportunity for those wronged by the system to have any vindication.  While there are appeals boards, the standards for granting an appeal are rightly very high and they also have numerous assumptions going into the appeal (e.g., the evidence standard for altering decisions is usually much higher.)  Even is a student is convinced and is correct that an administrator has been acting unethically, they are easily dismissed as having “sour grapes” or being “retributive.”  After all, one could claim, they are a cheater and are too mature to take responsibility so how seriously can you take them?

 

College Judicial Consultants wants to make sure that we help students identify the situations where factors other than their actions are being considered, and give them the tools to fight those factors.  In other words, we want to help them bridge the gap in power and authority inherently present in the system.  I still believe that accountability is of primary importance on a college campus, but accountability quickly becomes oppressive if it supports an unfair dynamic.  Judicial office(r)s are the first and best line of defense to prevent this from happening and, frankly, a lot of them need to step it up.

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