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.
