College Judicial Consultants

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Archive for the tag “unfairness”

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.

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.

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.

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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