College Judicial Consultants

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

Archive for the tag “respondent”

An Easy Solution to the Innocence Problem

quote-it-is-better-that-ten-guilty-persons-escape-than-that-one-innocent-suffer-william-blackstone-211382College Judicial Consultants I wrote a piece about the problem with proving your innocence in college judicial hearings—quite simply, if you’re innocent it is very hard to be found not responsible with the preponderance of evidence standard.

I’ve recently worked with another completely innocent client, and the same problems are there. She was accused of doing something that she not only had no idea how it happened, but for which she also had evidence-supported reasons for believing didn’t happen. I won’t talk about the details, but an analogous case would be if she were accused of arson.  A house burned down because the stove was left on, and she lives alone and had nobody over. When she left the house, she turned off the stove, took a picture of it being off with a time and date stamp, and then checked it one more time before leaving. While it’s true that the house burned down and the stove being on was the reason, she had no way of knowing that it was on prior to the blaze or how it was on considering what she did.

Disciplinary boards usually use a burden-shifting approach in determining responsibility. The respondent is innocent before the hearing, but once the complainant shows that something happened and that the respondent did it, it is now up to the respondent to prove it didn’t happen or she didn’t do it. This is how it works in court (again with apologies to my law professors,) but in judicial cases it is a much heavier burden than it is in court, and almost impossible for innocent respondents to meet in most circumstances. In criminal court, all the defense has to do is show that there is a “reasonable doubt” that the defendant didn’t do something. That’s a 5-10% chance. In civil court they have to show that it is 20-30% likely that they didn’t do something. However, in judicial cases the respondent needs to show that they did not do something that happened with more than 50% certainty. Once you show that something happened and that the respondent had either control over that thing or should have had control, the noose is essentially tightened.

the-shawshank-redemption-32I know that’s confusing, but think of it this way: I show you that a house burned down, that the stove being on was the reason, and that the respondent lives alone. How can she possibly show that she didn’t do it with more than a 50% certainty? She would have to know how it actually did happen and then prove it. What this means is that if the “most likely” explanation for a violation of the conduct code on campus is that the accused person did it, there is essentially no way to prove she didn’t.

It gets worse for the innocent student during a judicial hearing.

If you actually didn’t do something and you try to show the disciplinary board that you didn’t do it, that defense can hurt you. If the board thinks that you did it and finds you responsible, it means that they do not accept your version of what happened. Since they don’t accept your version there is a good chance that they think you’re lying, or at least trying to avoid responsibility. Since the disciplinary process is supposed to be “educational,” boards are likely to sanction someone they think responsible and avoiding responsibility harsher than someone who “comes clean” and accepts responsibility. This means that if an innocent student cannot prove that she did not do something, trying to prove it can hurt her more than simply pretending she did it and accepting responsibility even though she is innocent.

The solution to this is simple-retrain the boards. Most respondents are not “innocent” or at least not completely innocent. Some may have mistakenly broken a rule and are being accused of doing it intentionally, but most actually did something wrong that brought them in front of the board. This means that the current way of doing things “works” most of the time. However, if boards are trained to analyze information from the perspective of the accused student many of these false findings of responsibility can be avoided without any impact on the current success of the boards. So if a student can come forward and show that she took reasonable steps to avoid something, that she was unaware of something, or that she actively believed something that would have prevented the violation happened it would no longer be necessary to show what “might” have happened. It is much easier to “prove” what you know to have happened or what you did, than to prove what you had no way of knowing.

Sure there may be some students who escape findings of responsibility, but as the saying goes “It is better that ten guilty persons escape than that one innocent suffer.”

What do you think? How do you weed out “innocent” students or ensure that they don’t face an insurmountable burden? Write a comment or email me at DaveK (at) Collegejudicialconsultants (dot) com.

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

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

unfair

 

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

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

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

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

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

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

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

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

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

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

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

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

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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