Student discipline procedure at our nation’s colleges and universities is a disgrace that the recent controversy over how to handle rape allegations will unfortunately probably deepen.
When a college charges a student with misbehavior, fairness matters. Even though there is a dearth of law that truly compels the college to be fair, the student and the student’s family are usually making enormous sacrifices for the respondent’s education, and if the student is expelled or suspended, the family’s sacrifice may well be nullified. Worse, the damage to the student’s reputation will likely last a lifetime. A disciplinary expulsion can be as stigmatizing as a criminal conviction. Every professional license application questionnaire, every job application, will reopen the wound. The college owes the respondent student the right result, not just one that desultorily checks off procedural boxes.
Right results are not achievable without high-quality due process. But our colleges and universities are generally satisfied with a barely adequate process that protects a number of other interests far better than it protects those belonging to the student respondent, which should be paramount.
The first thing the colleges typically do, they kill all the lawyers. The rules of disciplinary hearings generally bar lawyers from appearing on behalf of anyone, complainant or respondent. Lawyers, however, enforce the procedural norms, they understand the rules of evidence, and they are trained in presenting facts. Notwithstanding, at most institutions, lawyers are allowed in, if at all, merely to counsel respondents about possible waivers of Fifth Amendment rights, and are usually sternly told not to participate in any other way – unless they are there to advise the finders of fact, which when it happens is hardly fair to the participants. If anyone, including the tribunal, brings a lawyer, everyone ought to have that right.
Even without a lawyer, student respondents typically are denied the right to cross-examine. How you can possibly have a fair hearing in cases where the witnesses contradict each other without anyone cross-examining is simply beyond me. Yes, being cross-examined is no fun; so are many of the other burdens of a civilized life. And college-age complainants, like respondents, are supposed to be learning how to bear such burdens.
Various explanations have been given for not allowing lawyer advocates, but it usually comes down to the fact that colleges do not want the expense of hiring administrative prosecutors to counter private defense counsel. Mere cheapness is no good reason, though, to deprive a student of a competent representation when his/her family’s fortunes and his/her own career may hang in the balance.
A secondary reason is the fear that slick defense counsel will confuse the amateur adjudicators, students or faculty. And it is undoubtedly true, as I have found repeatedly in advising student respondents, that students and faculty make truly awful adjudicators without any help from lawyers. Students simply lack the maturity, many of them being too young to serve as jurors in real court systems, let alone as judges. And faculty are, as I have found, all too willing to defer to what the college authorities think or want, and (oddly much more than the student adjudicators) inclined not to take their tasks seriously as they should. But even when there is sufficient seriousness and maturity, the analytical skills are usually lacking; it really takes lawyers to act as judges, both in the criminal system and in administrative systems like college tribunals.
This is important to do anyway, because in the end the big questions in these hearings involve applying rules concerning the assessment of burdens of proof, weighing evidence, measuring what is found against standards of proof, and exercising discretion to assess the correct discipline, where discipline turns out to be called for. Lawyers are systematically trained how to do this, and no one else in our society is.
I would add that in most situations, the only person whose interests are directly involved is the student respondent, and in a situation like that, there should be little debate that the respondent should be protected by a clear and convincing evidence standard of proof. The typical accusation, where a student is accused of cheating, may rest on circumstantial evidence that could be read either way. The risk of error should fall on the institution and on society. Preponderance of the evidence can destroy a student’s life on a hair’s weight of difference. That’s not just good enough.
Hue and cry
These days there is also a hue and cry led by the U.S. Department of Education to perpetuate some of these worst practices in the administrative prosecution of rape charges. You will get no argument from me that suspicion of rape and other forms of assault is different from, say, suspicion of plagiarism. The complainant certainly deserves special solicitude and protection. But suspicion is just that until it has been confirmed through some credible and fair form of process. And in the meantime the respondent should not be stigmatized by being treated as if he were guilty, even in service of protecting the complainant. Almost every protection that DOE recommends is based on the assumption that the respondent is guilty, for instance removing the respondent, and never the complainant, from classes the two may be in together, and moving the respondent and never the complainant, from shared dorms. In other words, obliterating any semblance of a presumption of innocence from the academic and social environment the two jointly inhabit.
It gets worse when it comes to procedure. DOE has all but ordered colleges to use a preponderance of the evidence standard, and not a clear and convincing standard of evidence. Sorry, but, particularly where, as is likely with rape allegations, the only evidence is “he said/she said” and hence is in close to equipoise, a mere preponderance standard cannot be enough fairly to adjudicate what are close to criminal accusations. The consequences for the respondent are just too serious, however serious the alleged misdeed.
Similarly, in an environment where DOE is well aware that defense lawyers are generally prohibited from playing a meaningful role, DOE still “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing,” because “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating.” No mention of the possibility that allowing cross-examination of a lying accuser may be the only way an innocent respondent may be able to get to the truth of the matter.
Rape is horrible; it is also a horrible thing to be wrongly found to have done, and an easy charge to make falsely. When an accusation is made, there must be a fair path to exoneration. DOE has shown itself intent on placing roadblocks in that path.
And DOE means business. It advises: “When the [institution] does not come into compliance voluntarily, [the office of Civil Rights] may initiate proceedings to withdraw Federal funding … or refer the case to the U.S. Department of Justice for litigation.”
We need to take a breath. And we need to still the accusations that all concerns for due process are just apologetics for a rape culture. We all, including the many bona fide rape victims, still need a due process culture.
Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.