Following in the footsteps of my esteemed colleague in Political Science, Michael Johnston, I recently tendered my resignation from the University Student Conduct Board. Unlike Professor Johnston, who quickly smelled a rat, I lasted over a year on the Board, but now need to add my voice to those clamoring for reform.
Indeed, I can no longer participate in a process that I feel has strayed too far from fundamental fairness. The specific reason for my resignation is the practice, which has been used both with the Conduct Board and the Equity Grievance Panel (EGP), of the university taking on the role of the “complainant,” with the staff member saying that they are speaking on behalf of “victims” who claim harm. In the conduct board case that led to my resignation, requests to see direct testimony from these “victims” or direct evidence of the harm done, even anonymously, were denied.
Why does this practice lead me to resign from the Conduct Board? Unlike a court of law where there is a judge and jury who are independent, in campus disciplinary processes the university takes on both of these roles (and ultimately hears the appeals as well). If the University also becomes the complainant, it effectively becomes accuser, judge and jury combined. This situation is contrary to the most basic principles of due process, protections Colgate claims to provide students.
However, as the administration has vigorously asserted, private institutions are not bound by due process or constitutional protections, but only to the much lower standard of “fundamental fairness,” which gives considerably more discretion to the institutions and less protection to students than what we tend to understand as rights guaranteed by due process (this was the focus of Prof. Johnston’s opinion piece).
However, fundamental fairness has been determined to mean, according to Colgate’s own lawyer, that students undergoing a disciplinary procedure must have a “decision-making process free from bias or prejudice.” Try as I might, I cannot philosophically or ethically square this requirement of fundamental fairness; indeed, having the institution be accuser, judge and jury acting on secret evidence seems to negate much of what we expect in terms of American legal proceedings.
Adding to my reservations, in all three hearings where the University has taken on the role of the complainant with which I have personal experience (two EGP cases and now the one Conduct Board case), the result has been the most severe sanction possible, i.e. expulsion.
In Dixon v. Alabama, one of the landmark cases that established the parameters of fundamental fairness for campus disciplinary cases, the opinion pointed to the need for fairness in disciplinary action for everyone involved with campus disciplinary proceedings:
“In the disciplining of college students there are no considerations of immediate danger to the public, or of peril to the national security, which should prevent the Board from exercising at least the fundamental principles of fairness . . . Indeed, the example set by the Board in failing so to do, if not corrected by the courts, can well break the spirits of the expelled students and of others familiar with the injustice, and do inestimable harm to their education.”
Despite these concerns, the administration insists that our policies allow it to take on the accuser role. And this applies to all members of the Colgate community; while the Conduct Board only hears cases involving accused students, the EGP has disciplinary authority over students, staff and faculty. On a positive note, Dean Nelson has signaled her willingness to review and revise the University’s disciplinary policies. I urge anyone concerned about their rights to let her know of your concerns so that the policy can be revised to reflect to more closely reflect norms of American due process rights. To paraphrase Smokey the Bear: “The college career (and beyond) you save may be your own.”