Monday, September 15, 2014

Watch Yourself at All Times

by Michael Johnston

Charles A. Dana Professor of Political Science

Author’s note: this essay, which is aimed mostly but not entirely at a student audience, has also been submitted to the Colgate Maroon-News

[Colgate] University recognizes the need to protect the inviolability of the student’s personal and civil rights: specifically, the right to be secure in one’s person, speech, living quarters, papers, and effects against unreasonable search and seizure; and the freedom from disciplinary sanction except by due process, with avenues of recourse available when a student claims to have been subjected to prejudicious, discriminatory, or capricious treatment.

Colgate University Student Handbook 2014-2015, p. 153.

It would be easy for a Colgate student to read the passage above and feel secure: the University, it seems, promises to uphold fundamental rights and abide by the rule of law. It would be easy—but it would be wrong.

My distinguished career as an elected faculty representative on the University’s Student Conduct Board (SCB) lasted about two hours—long enough for me to attend a training session on a recent afternoon, and then to go home and send an email resigning my position. I was surprised to have been elected, last Spring, but it was clear the job was one to take seriously: just follow the news and you know that campus disciplinary processes have become controversial in many places. Thus it was good to know there would be at least some training for us newcomers, and I arrived at the session interested to learn more and willing to contribute.

By the end of the session, however, it was clear that I could not take part in the SCB and its work with a clear conscience. As for students or anyone else who may be party to a case, if you become involved in SCB proceedings you may find yourself at considerable risk—with very few guarantees and safeguards. That is true whether you are the accused, or the accuser. Witnesses too may find themselves wondering just what their role is, what rules and procedures apply, and whether what they know has been reported accurately—or even at all, in the course of the SCB’s confidential proceedings. Whatever the Student Handbook may appear to say, the best advice I can give is this: Watch yourself at all times.

Now, I have never heard an SCB case or participated in a decision. So where do these dire warnings come from? The main focus of our training session was a powerpoint presentation by an attorney from Bond, Schoeneck, and King (BS&K), the University’s legal counsel. BS&K’s lawyers are smart people, and they know their law, yet the presentation laid out what was, for me, a chilling description of how the SCB does its business.

The attorney explained that the University, as a private institution, need not honor the Constitutional standards one might expect to apply; indeed, “due process” as mentioned in the Student Handbook is due process in “an administrative sense” only. Colgate can “choose what level of rights to afford students,” and is obliged only to observe “fundamental fairness.” Thus, slides that ironically bore that last phrase as their title explained that in SCB proceedings there are no requirements that:

• Parties to a case be allowed legal counsel;

• Criminal procedure rules of evidence be followed;

• Public hearings be held;

• Cases reach a speedy resolution;

• Individuals be able to confront witnesses;

• Parties to a case be compelled to produce witnesses or exculpatory evidence;

• Findings of guilt be unanimous or the judgment of any sort of supermajority;

• Other due process protections under criminal law be upheld.

Bear in mind also that SCB cases are decided on a “preponderance of the evidence” standard. The Board does not need to find the evidence against you to be convincing beyond reasonable doubt, but rather only that more likely than not, the charges are true.

Moreover, there are no required protections against self-incrimination, and the accused has “no right to remain silent without consequence.” That’s a real double-whammy: if an allegation before the SCB should also become the focus of a criminal case (a possibility that lies completely beyond SCB control), anything the accused has said to the Board, including ill-advised remarks made in the absence of legal counsel, is “discoverable”: it can become evidence at trial. Thus, if you are the accused dealing with the SCB, anything you say can be used against you—but so can your silence.

We often think of basic rights and protections as serving the rights of the accused, and in my view those rights are essential. But many recent controversies over campus disciplinary proceedings have had to do with the way accusers and victims have been treated and mistreated, and on that score too there is cause for concern. If you are accusing someone of an offense, the points listed above mean that there is no requirement that you be allowed to have legal counsel, to insist that basic rules of evidence be followed, to challenge witnesses, or to demand that the University handle your case in an expeditious manner.

Will the student, faculty, and administrative members of the SCB who hear your case strive to be “fundamentally fair?” Yes—of that I have no doubt. Will the administrators who oversee the SCB and manage its work protect your rights? That’s less clear, because the University has interests and agendas—most notably, but not only, its public image and financial wellbeing—that do not necessarily line up with yours. Will BS&K monitor the process and step in if your rights are threatened? Don’t count on it: they get paid to protect the University. You would be better off, during SCB proceedings, with a lawyer of your own—oh, wait, you may not be allowed to have one. Indeed, the attorney explained that should your rights be violated in the disciplinary system, redress is not to be found within the university. Your only recourse is to sue.

BS&K’s advice to us was that within the jurisdiction of a private institution, Constitutional standards of due process do not apply. Subject to very broad parameters, the University can establish whatever rules and procedures it wishes, and then is required only to abide by its own standards. In a straightforward legal sense, the attorneys are quite right. SCB does not wield public legal power; it cannot fine or imprison an individual, nor can it award damages to victims. Its function is to judge allegations of misconduct by students as students, and to determine how its findings should affect a student’s continuing presence in our community.

But looked at in other ways it is more powerful than that narrow interpretation alone would suggest. For example, a student who has been suspended may well need to explain, in future job interviews or when applying for post-graduate programs, why it took him or her longer to earn a degree (Colgate discloses disciplinary records if requested by another institution). An organization punished for the actions of some members may face threats to its viability. Fair enough—if we have confidence in the process by which those sanctions were imposed. But do we? And a student who has been victimized by others, and who has brought a charge—a decision that can require genuine courage, particularly in the absence of basic procedural guarantees—may find that while the rumor mill works overtime both on campus and beyond, he or she has no way to demand that the University seek out or consider evidence, allow the other side’s witnesses to be confronted and challenged, or even that it just move the case along toward a prompt conclusion.

Colgate can do better than that. Nothing in the legalities spelled out by BS&K prevents us from doing so. Given current controversies surrounding the handling of sexual assault and other cases, one might think Colgate would have a real interest in upgrading its procedures across the board: SCB, after all, is not the only body dealing with grievances and misconduct of various sorts. But apparently not: when several of us at the training session challenged the justifications and defense offered on behalf of current procedures, we basically got two responses: other private institutions follow similar rules, and while it might be possible to uphold some Constitutional standards, at a place like Colgate it would be inconvenient, expensive, or awkward to do so.

Oh -- umm, sorry to have been a bother.

Quite possibly, procedures at some other schools are even worse. Someday, Colgate may decide to do better. Until then, watch yourself at all times.