The rules of justice are different when the court's on campus
It wasn't that long ago the early 1980s. Ed Stoner happened to be in the admissions office of Duquesne University in Pittsburgh, when a student approached the dean's secretary and asked for a copy of the school's code of conduct.
Without a word, the secretary opened a top drawer in her desk and smartly pulled out a 3-by-5 file card from a large stack apparently intended for such situations.
In neatly written letters, it read: "Whatever the dean says goes," recalls Mr. Stoner, a lawyer who frequently represents colleges and universities and is the author of a model code adopted by many schools.
The gesture smacked of the sort of Sahara-dry wit deans are known for. In the 20 years since that moment, campus justice systems have remained clearly distinct from the courts outside the walls of academe. Nevertheless, increasingly legalistic and politicized campus procedures often featuring alcohol-related charges and career-shattering expulsions leave few willing to crack jokes.
Changes in disciplinary proceedings have profoundly shifted the notion of in loco parentis: Gone is the omniscient dean whose word is law, replaced with an often-secretive judicial board.
But that shift has not satisfied those looking for a clearer road map for campus justice. Board members argue their focus is educating rather than severely punishing students in trouble. Critics fault a murky system and invoke the example of Medieval England's Star Chamber, as students are found guilty of serious charges behind closed doors on the basis of sometimes flimsy evidence.
Anger at campus courts reached fever pitch a couple of years ago, when Columbia University in New York changed its policy, reducing the rights of the accused in sexual-misconduct claims.
About the same time, Prof. Alan Kors of the University of Pennsylvania and Boston lawyer Harvey Silverglate formed the Foundation for Individual Rights in Education (FIRE), a grass-roots group that investigates student claims of civil-rights violations. Reversing Columbia's policy became one of their first causes.
Today, FIRE hasn't relaxed its campaign to bring its idea of fairness to campuses. This year, it's received 600 cases, 300 relating to matters of due process, such as the right to an impartial jury.
In this atmosphere, Harvard University, which has had a rash of sexual-misconduct complaints, announced last week a new approach to disputes between students. Claims brought to the Harvard Administrative Board will now be screened instead of automatically triggering a hearing. Only with "sufficient independent corroboration" will the board investigate.
Some say this ivory-tower version of a grand jury wrongly molds school disciplinary procedures after criminal ones, turning an educational process into a legal brawl better suited to "Judge Judy." Others worry that in cases of sexual misconduct, where physical evidence is often lacking, victims will suffer most.
Whether many schools will follow Harvard's example is still unclear, says Sheldon Steinbach, general counsel for the American Council on Education. Ultimately, though, Mr. Steinbach expects that Harvard's "innovative" policy may go a long way in helping universities answer a now-controversial question: What are appropriate standards of justice in campus proceedings?
At most schools, disciplinary proceedings are as much a part of tradition as football rivalries. Harvard's "Ad Board," for instance, was established in 1890. And, administrators say, procedures don't vary much from school to school. Most have a presiding officer and a hearing board of faculty, administrators, students, or some combination of all three.
Courts generally take a laissez-faire attitude toward justice on campus. Essentially, schools set their own rules; law requires only that they be consistent. In fact, beyond the ABCs of trial fairness that the accused be informed of the charges and allowed to respond schools have no legal obligation to ensure due process.
In such proceedings, it is usually not proof "beyond a reasonable doubt," as in a criminal court, that is required, but rather, a "clear and convincing" case against the accused.
As a result, groups like FIRE argue, schools admit evidence any TV viewer would easily recognize as inadmissible in court. J. W. Carney, a Boston defense attorney who frequently represents undergraduates in campus proceedings, says it's not uncommon for third-level hearsay to be used to convict a student. In addition, says Mr. Carney, hearing boards are often made up of "immature students ... the overwhelming majority of [whom] want to play judge, convict the accused, and impose a serious sentence."
Ben Wetmore, a junior at American University, in Washington, D.C., had a crash course in loaded juries during finals this year. Mr. Wetmore had brought a video camera to a Tipper Gore speech on campus in April, hoping to post a recording on his website. Not long into the talk, three plainclothes campus police officers tapped him on the shoulder and escorted him out. They confiscated his tape and later filed charges of entry without permission, theft, and disorderly conduct.
At the hearing in early May, Wetmore found that his "jury" included the hearing officer, the hearing officer's law clerk, and a fellow student who happened to be a former opponent of his in student government. "The whole thing was a monkey trial," he says.
Lack of due process on campus is heightened when the case touches highly sensitive subjects like gender, race, or sex, says Mr. Silverglate, who represented Harvard students in 1969 during antiwar protests. Silverglate says schools tend to define offenses in broad, politically acceptable terms. Calling an advocate of abortion rights a "baby killer" can be grounds for harassment charges; consensual sex, if linked to alcohol, can be treated as sexual misconduct.
But for most college administrators, campus courts and school codes are different from criminal law and rightly so. "There are circumstances in a college environment that really demand we look at these issues differently from criminal courts," says Richard Stegman, dean of students at Roger Williams University in Bristol, R.I.
The most troubling "circumstance," according to Harvard's Coalition Against Sexual Violence, is that surrounding the victims of sexual misconduct, who typically have few options: Prosecutors are unlikely to take on such cases, and mediation is generally unworkable.
Sarah Levit-Shore, the coalition's leader, says Harvard's new policy boils down to neglect: Schools should beef up their investigative role and train more administrators who specialize in prevention of sexual assault. "Giving up ... is not good enough," she says.
Many administrators also like to emphasize that schools ought to be in the business of education, not punitive justice. Civil-rights advocates complain that schools often don't allow accused students to bring attorneys to a hearing. But Mr. Stegman and others insist that when legal jargon and assumptions about the criminal system seep into campus hearings, the effect is to create clear winners and losers.
Such arguments outrage Thor Halvorssen at FIRE, who says the system has already produced many losers. Hearsay evidence admitted in a campus hearing, he says, can often be subpoenaed in a criminal court to grave effect. "Entire lives and careers have been ruined as a result."
Steinbach, like Stegman, thinks schools should continue to respond to cases of all kinds from mundane cheating to serious criminal charges. "You can't turn your back on it," he says. But he also recognizes some excesses in the system though perhaps not to the extent FIRE would like. Applauding Harvard's new policy, he says, "Allowing every case to go to a hearing is patently unfair."