Campuses strive to make hearings less courtlike
The old rules of campus conduct draw sighs and scorn. That’s from conduct officers themselves, who gathered here last month for their annual meeting.
In a session late one afternoon, three presenters asked a crowd of several dozen to call out connotations of the “traditional retributive model,” in which a university panel hears students and decides whether to punish them. The slights spilled forth: “payback,” “fear,” “consequences.” The group repeated the exercise for “restorative justice,” a theory of conflict resolution that favors sitting in circles. Their tone lifted: “dignity,” “trust,” “repentance.” Later, in another session, a young presenter said that “the old ‘rule-based approach’ to student conduct is no longer effective in our education system.”
Conduct officers have been moving away from the legalistic disciplinary systems that colleges built in the latter half of the 20th century on the belief that they’d lose lawsuits without them. Confident now that judges won’t expect those systems to conform to the rules of criminal procedure, colleges are making hearings less like trials, and more frequently using mediation and similar techniques to settle disputes. Is our goal to troubleshoot, administrators ask, or to graduate good citizens?
At the meeting here, called “Transforming Our Practice for the Future,” the Association for Student Judicial Affairs changed its name to the Association for Student Conduct Administration, dropping the J-word many members had already stripped from their campus offices. And not only the legalistic terms are waning. A national survey presented this month shows that institutions are scaling back on some criminal due-process procedures they used to uphold, such as a person’s right to have a public hearing and to confront opposing witnesses.
Colleges still decide cases — and impose sanctions — but a steady movement over the past decade has taken hold: Campus conduct systems should steer clear of legalese and all that judicial maneuvering.
“We do not want to be mini-courts,” says Gary G. Dickstein, president of the student-conduct association and assistant vice president for student affairs at Wright State University, in Dayton, Ohio. “Slowly but surely, we’ve been encouraging people to get as far away from any legal terminology as they can.”
Leave the protracted wrangling to courts, he says. Whether with hearings or mediation, stick to a process that students can readily navigate. Mr. Dickstein plans to change his other campus title, director of student judicial services, so that people don’t expect him to prosecute delinquents — or continue to call him looking for Wright State’s general counsel.
At the same time, some institutions have ratcheted up a practice that sounds prosecutorial: investigation. While legalism on campuses may be out of style, litigation against colleges is not, and risk-management consultants have encouraged institutions to step up their fact finding before holding students responsible. Investigators say they help keep the disciplinary process fair for students — and defensible in court — while playing by the new rules.
‘Bare Minimum’ Due Process
Campus-conduct procedure became courtlike when it stopped being paternalistic. In the bygone era of in loco parentis, colleges’ discipline was discretionary, like parents’.
But in 1960, Alabama State College (now Alabama State University) identified six black students who had participated in civil-rights demonstrations and expelled them without a hearing. They sued, in Dixon v. Alabama. In a landmark decision, a federal appellate court ruled in the students’ favor, saying that a public institution owed them the right to defend themselves. Similar cases in that tumultuous decade prompted colleges to establish due-process protections.
Disciplinary functions spun out of deans’ offices and took on the authoritative label “judicial.” Some campuses almost followed penal codes, says Donald D. Gehring, a professor emeritus of higher education at Bowling Green State University and founder of the student-conduct association.
The disciplinary process became procedural for one main reason, Mr. Gehring says: “We were afraid we would do something wrong and get sued over it.” Private institutions, not subject to the same standard of due process as public colleges, generally moved in that direction nonetheless. In 1975 the Supreme Court decided a case involving high-school discipline in Ohio, Goss v. Lopez, and set the standard that institutions’ sanctions should involve “some kind of notice” and “some kind of hearing.” But colleges’ procedural obsession hindered liberal interpretations of that standard.
By the 1990s, as more courts upheld disciplinary decisions so long as they conformed to institutional policies and seemed fair, the conduct process started shifting. Administrators insisted on collecting not evidence, but information; finding students not guilty, but responsible; imposing not sentences, but sanctions.
Conduct officers came to see the old model as unnecessarily cumbersome. Now “the direction almost entirely is, How can we whittle down our due-process procedures? What is the bare minimum that we have to do?,” says Gary M. Pavela, a consultant to colleges on legal issues and a former director of student judicial programs at the University of Maryland at College Park.
A recent national study of student-conduct policies, presented this month at the annual conference of Naspa — Student Affairs Administrators in Higher Education, shows that shift. In 2007-8, only 19 percent of institutions allowed students a public hearing, a drop from 30 percent in 1987-88 and 40 percent in 1977-78. About half (53 percent) let students confront and cross-examine opposing witnesses, down from 61 percent in 1987-88.
Still, students charged with misconduct can present witnesses at most institutions — 93 percent — and a defense at even more. Those figures rose slightly in the last 20 years, according to the longitudinal study of 200 baccalaureate-degree-granting institutions by John Wesley Lowery, associate professor of student affairs in higher education at Indiana University of Pennsylvania, and Mike Dannells, director of admissions at Eastern Oregon University.
As colleges peel off layers of due process, however, in an effort to shed the staid judicial model, they may actually subject students to more institutional control. That poses a challenge in cases that generate strong public pressure, especially those involving athletes and allegations of sexual assault. Protesters’ calls for action — and fears of liability for inaction — can prompt institutions to swiftly discipline accused students.
“Administrators have a strong inducement to basically punish first and ask questions later,” says Mr. Pavela. Several student-affairs officers pointed to the allegations of rape against lacrosse players at Duke University. (The institution reached a settlement with the students who were indicted, suspended, and later declared innocent in the case; a lawsuit filed by their teammates, whose season Duke canceled, is pending.)
Risk management can threaten the conduct process, says Mr. Pavela. “Colleges are swinging the pendulum too far toward more control, less due process,” he says.
On some campuses, conduct boards that hear and decide cases are almost trained to expect that students are guilty, Mr. Pavela says. And with techniques like mediation, he says, “we have to be very careful of masking our power in the language of benevolence.”
As the word “judicial” goes away, a judicial temperament — in other words, an open mind — should not, Mr. Pavela says. These days he finds the need to emphasize a point he has always repeated: “Hear the case before you decide it.”
Aggressive Investigations
Susan M. Davis gives decision makers as much information as possible. A former associate general counsel at the University of Virginia, she began investigating cases of sexual misconduct and assault there in 2005, after a campuswide review of those policies persuaded the university to beef up its investigations.
“We weren’t going at it aggressively before,” says Ms. Davis, an assistant vice president for student affairs. Now rigor is her goal.
Two to six times a semester, she picks up a case and drops all else. She usually begins by meeting with the students on both sides. A few years ago, she started investigating with a partner, Suzan L. Garson, a social worker and student-affairs officer at the university.
They try to resurrect the timeline of the night in question, asking students for access to their e-mail and Facebook messages and interviewing witness after witness. “What did she drink?” Ms. Davis might ask. “How did she seem? Did you see the two people together? How were they interacting?”
She inspects digital cameras, checks for accurate time stamps, points to people in photos, and asks to speak with them. In one recent case, she remembers, the 16th witness had critical information.
Ms. Davis also retraces students’ paths, measuring how far they walked from one point to another, on how steep a grade, with how many stairs. That information helps to gauge a student’s level of intoxication, she says. She also inspects the room where the incident took place; the layout can be important. She takes photos. Sometimes she knocks on neighbors’ doors.
“So much is subjective,” Ms. Davis says. “You try to bring as many of the objective facts as you can out.” Under an agreement with the city attorney’s office in Charlottesville, she can examine, with students’ consent, evidence in related criminal cases. Once the city turned over clothing and bedsheets.
After she investigates a case, Ms. Davis prepares a written report that goes to the university’s sexual-assault board and to both students before a hearing. “It has improved the quality of the evidence,” she says, and it keeps students from being blindsided in hearings.
Current theories of student conduct may consider formal investigations too legalistic, but Ms. Davis sees them, at bottom, as educational. Average students don’t typically analyze the boundaries of sexual misconduct and sexual assault, she says, but those involved in cases must: “You’re forced to really digest what these definitions are.”
The University of Colorado at Boulder also designated a special investigator after a sexual-assault scandal involving its football team. The job focuses on cases of sexual assault, dating violence, and stalking, as well as discrimination and harassment of protected groups.
Leslee K. Morris, also a former university lawyer, started investigating those cases in 2005. She interviews witnesses and examines, for example, video surveillance, telephone logs, police and medical records — as much as she can without subpoena power.
Ms. Morris also determines responsibility in the cases she investigates. Applying the standard “more likely than not,” she decides whether a violation occurred. A review board must approve her written reports, and students may present further information before the university’s judicial director sets sanctions.
Colorado prefers an investigation to a hearing board in sensitive, high-stakes cases, Ms. Morris says. “The bottom line is that sexual-misconduct allegations are very serious and have far-reaching implications for both students,” she said in an e-mail interview. “We feel strongly that it is our job to be experts on the nuances of these cases, such as determining incapacitation and determining credibility.”
All the Facts
The idea of a sleuth on the campus upsets many student-affairs veterans.
“Going out and getting a professional investigator to run down what happened makes it seem like too much of an adversarial thing,” says Mr. Gehring, founder of the student-conduct association.
After all, most cases are straightforward, he says: Well-trained conduct officers should be able to perform due diligence, and in more complex cases, rely on campus police officers for help. Even at Virginia and Colorado, investigators work only with high-stakes charges.
Campus conduct systems, though changing, retain some fixtures of the judicial process — if not to be legalistic, then to be fair. More than 80 percent of colleges still conduct some form of investigation before hearings, according to the national survey. Other institutions structure hearings as opportunities for students to present information and board members to sort it out.
Eugene L. Zdziarski II believes in investigations ahead of hearings, if not the need for specially designated investigators. At Roanoke College, where he is vice president for student affairs, conduct officers put together reports that hearing boards review shortly before they question students.
Previously, at Texas A&M University, Mr. Zdziarski trained staff members to investigate hazing cases. “We’d pull together two people and say, ‘We need you guys to take the lead on this,’” he says. “That’s probably a more practical role in these economic times.”
A thorough investigation before a hearing is critical, says Mr. Zdziarski, particularly when charges and possible sanctions are severe. “When you’re dealing with an expulsion,” he says, “you’ve got to have a pretty substantive amount of information to base a decision on.”
Part one of a three-part series.
http://chronicle.com Section: Students Volume 55, Issue 29, Page A1
