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.  


Anonymous said...

Hopefully, every student who reads this piece in the Maroon News will share it with their parents, high school counselors, prospective students, and others. Everyone should know how truly scary it is now to be at a place like Colgate University--whether as a student or members of the faculty. And it seems the end to this recurring nightmare is nowhere in sight.

Barry Shain said...

Dear Michael,

Many thanks for your willingness to report on this matter and still more for your unwillingness to serve on the SCB. As I may have mentioned to you, when I tried last spring to report on the University's policy of limiting students' due process rights and to warn parents of the dangers their sons confronted under this administration's misguided approach to Title IX issues, via an interview I gave to the Maroon's Editor, the administration apparently refused to let him run it. I trust that your efforts will meet with greater success!

I would like as well, though, to amend one of your contentions, that is, that the SCB "cannot fine or imprison an individual." No doubt, you're right in holding that Colgate does not possess such powers legitimately, but when one takes into account recent decisions of the EGP, then it appears that this administration believes itself capable of doing both, that is, imposing grievous fines on students and imprisoning still others.

The effective fines result from the administration's policy of suspending male students suspected of what its understands to be Title IX infractions pending investigation; for a full-pay student this could result in a rather large fine possibly amounting to $30,000 or more. As for imprisonment, as you may know, the University is currently being accused of a conspiracy and sued for exactly this crime, that is, for having locked up a student in the basement of Curtis Hall for nearly two days. Neither is this, it is my understanding, the first time that this administration has committed similar transgressions against international students lacking, in their eyes, constitutionally guaranteed rights.

Again, many thanks for your moral courage in saying no to this administration efforts to strip our students of minimal due-process protections and for reporting on the same.

My best.


S. Fitzmichael Devlin said...

Hi Michael,

Thank you for your post and your courage.

I touched on the issue of due process rights at Colgate in a Letter to the Editor published in the Maroon News in February 2013: "It is time to consider advocating for changes in the fundamental principles upon which your community is based. I envision an undergraduate community that treats all its members as adults, respects privacy and freedom of association, and affords its members reasonable due process. What is your vision for the undergraduate community? What rights and responsibilities should form the basis of your experience at Colgate?"

Are there any Colgate students out there interested in having this discussion and working for change? A unified coalition of students, faculty, and alumni working together may be able to succeed in changing our university for the better.

Sean Fitzmichael Devlin '05

Ryan Martin '06 said...

This is a situation that has been going on for ten years, at least. I was a pledge to Kappa Delta Rho in 2004 as a sophomore at Colgate. At our commitment ceremony, two members of the fraternity were cited for trespassing when we ascended a hill (unbeknownst to us, on private land) overlooking campus wearing suits and ties to be read "Self Reliance" by the fraternity brothers. A few days later, all 14 pledges received phone calls informing us that we had to report to the front of our dorms to be escorted by officers to campus safety. After being made to wait several hours at campus safety with no information about why we were there, we were individually brought in front of campus safety officers and read our Miranda rights, signing a paper stating that we had been mirandized and understood our rights. The campus safety officers informed us they were investigating the "hazing" that occurred on the hillside. Having been mirandized, I requested a lawyer, which was refused. I indicated that I would not answer any questions and was told that if I did not provide information I would "have to call my parents and inform them I no longer attend Colgate." I was 19 years old and intimidated into providing information that was used to suspend and expel my friends and to remove KDR from campus. All 14 pledges shared similar experiences.

Despite being considered by the University as victims (as the pledges in an alleged act of hazing) or at best as witnesses, we were treated as criminals, denied counsel and intimidated into waiving our 5th Amendment rights by uniformed and badged police officers representing the University who had minutes before read us our miranda rights and had us sign a form affirming that we had been mirandized.

At a sit-in at the administration offices to protest the elimination of KDR and suspension and expulsion of some members, I gave a speech to students and administrators describing in detail our treatment, hoping it would lead to changes in the treatment of students.

This situation continues to follow me, as I recently almost lost my job after Colgate campus safety informed the investigator in my background investigation that I had been arrested in 2004 for hazing and providing alcohol to minors. At no time was I ever arrested or informed of any charges and in releases in 2004 by the University, I had consistently been referred to as a victim of the alleged hazing. Colgate campus safety failed to respond to multiple emails and phone calls before ultimately refusing to provide a signed statement indicating that I had never been arrested and lied and claimed they never had made that statement to my investigator (the investigator provided me with the name of the campus safety officer who made the report to her).

I love Colgate, the education I received has made me the person I am and the friendships I made continue to be among the most important in my life. However, the administration is and has been a dictatorial regime more concerned with rankings in annual magazines than student welfare and campus safety are their knuckle dragging enforcers. In a way, they taught me a valuable lesson: be cynical and expect that people with power will abuse their power to take advantage of those around them.

I had hoped that this would have changed with the replacement of Becky Chopp with Jeffrey Herbst, but it appears it has not.

Anonymous said...

In view of the current less clearly focused sit-in than yours of a decade ago apparently was, might it be timely to submit your note for publication to the Maroon News as a follow-up piece to Professor Johnston's courageous letter?

John Carlson said...

Props to Professors Johnston and Shain for speaking out. Don't want to go into too much detail because the memory is still a bit raw, but I was arrested and then suspended by the university because of false allegations by a campus safety officer. Allow one example of the unfairness of proceedings: following the testimony of a witness that she immediately received percocet for her injuries (supposedly at my hands), I pointed out that she was an addict who lied to get drugs, but my comments were immediately stricken from the record along with several outraged glares. In short disciplinary hearings are perfunctory exercises akin to checking a box before the CSB metes out punishment. My argument was never going to be considered as the narrative had already been established. Everyone had read the safety officer's report before I got to say my two cents. Before I even attended the hearing I was expelled and banned from campus without anyone asking for my version of events. Maybe they were worried that I would foment unrest? Not that I expected a fair shake, my lawyer who settled my arrest in the Hamilton court told me as much. But some lies ended up costing me my graduation and a semester of fees (I graduated in absentia after finishing course work elsewhere). I'm glad to hear others recognize that the CSB is a colossal sham that railroads people to fickle punishments without any real oversight or justification. I wish the best to those striving for reform. As far as ideas, perhaps it would be best if the hearings were made more public, although I'm sure that would be most unappealing to the Board members. In the real world authority figures are subject to intense scrutiny; if you are affording these students and faculty the power to impact people's lives they should have to at least explain their decisions rather than hiding behind the wall of Colgate's private jurisdiction.

Anonymous said...

This is an excellent article and I hope it gets the coverage it deserves. I also love Colgate but after being through the disciplinary process (and seeing a few friends in the same situation), I must say that the whole process is a ridiculous sham. Students are completely at the mercy of the narrative created by the Dean and Campus Safety. There is no burden of evidence on the school and nothing resembling a "trial" or "hearing" - it is truly a case of guilty until proven innocent, if it suits the administration's agenda. My lawyer in my case was disgusted with they way that the administration handles things and apparently this is just the "way things are". As food for thought, I was accused of a crime (legally) which I was subsequently not convicted of. The school meted out the full punishment for that crime anyways - as if their own proceedings carried more weight than real legal proceedings.

Unknown said...

Unfortunately this is typical on college campuses. The administrators have no idea how to investigate accusations whether toward students, faculty or staff. Lives and careers are ruined but administrators don't seem to care. The lawyers protect the university and are not looking for justice. Our lawyer, ( at a Midwest college, in response to a question of how to protect faculty and staff after a faculty member was fired without justification) said that the students are the colleges customers and the customer is always right!!! How's that for justice? If anyone has any answers on how to right this, a lot of people would likely be on board.

Doug Macdonald said...

Michael Johnston has consistently been the most trenchant critic of problems at Colgate over the 27 years I was there. I have not always agreed with him, though in this case I do, but he has been a thoughtful beacon of liberal thought and traditional liberal arts values as departmental chair, Social Science Division Director, and general critic of an institution he obviously loves. Once again he has struck a blow for liberal values that are the core of Colgate's intellectual mission as many of us perceive it.

What are we telling our students in a system that is non-transparent, which deprives essential rights, and which is oppressive in its methods? This is not just a problem for Colgate, but for collegiate education in the US. Indeed, Colgate has been somewhat better than many other institutions in the past (which makes the appeal to "best practices" of other institutions used by administrators even more ominous.)

Student rights, even those which we may object to, constitutional or otherwise, have to be maintained. They are citizens, as well as members of the Colgate community, and that should be a part of our treatment of them as an institution. That includes the dreaded White Males.

Michael would probably disagree with my emphasis, but Professor Shain makes telling points in this regard. Drunken girls should be held to the same "judgment" standard as drunken boys. Neither group distinguishes itself. But they should be judged by the same standards. The "culture of rape" advocates do not make this fundamentally fair distinction. If we are to constrain this repulsive behavior, we have to deal with both ends of the candle.

The Colgate procedure, and that of most other educational institutions, does not do so.