Addressing The SCB Questions Left Unanswered

Michael Johnston, Charles A. Dana Professor of Political Science

In the September 25, 2014 issue of The Colgate Maroon-News, Vice President and Dean of the College Suzy Nelson and Associate Dean for Conduct Kim Taylor, responded to my critique of the University’s Student Conduct Board (SCB). Theirs was an articulate and measured statement. Unfortunately, it was in large measure a response to arguments I never made, and in other ways concedes key points of my critique. Taking Nelson and Taylor’s arguments in the order they raise them: they begin with the assertion that I object to “differences between [the SCB] process and the criminal law system.” Not so: I get that Colgate is not running criminal trials, and in fact said as much in my commentary. My objection is that the system is fundamentally unfair on its face, and I pointed out numerous ways in which that is so – points that were drawn directly from a presentation by the University’s own attorneys.

They then assert that “the vast majority of colleges and universities in the United States employ processes very similar to ours.” That may be so, but differences do exist: as reported recently in The New Republic (October 11, 2014), Columbia University allows parties in disciplinary proceedings to have legal counsel and will even arrange for free counsel if need be. What other contrasts might exist is a matter for extended research, but already Colgate has put itself in the position of operating and defending what are, to put it charitably, “second-best practices.”  

SCB hearings are fundamentally teachable moments, Nelson and Taylor tell us: “These administrative proceedings, where students, staff and faculty sit side-by-side and discuss matters related to ethical behavior and community values, are another way in which students learn.” That argument is too clever by about four and a half: like many other faculty members, in my classes we explore questions of “ethical behavior and community values” in many ways without needing to have a fellow student in the dock, accused of misconduct yet unable to confront the accusers and risking significant punishment or deprivation. To call SCB hearings an educational experience is a little like saying that entering the ring with a heavyweight champion is just a class in self-defense.

One element of my critique that Nelson and Taylor do not address is the risk of self-incrimination: the accused in an SCB proceeding has “no right to remain silent without consequence,” yet anything he or she does say – in the absence of legal counsel, let us remember – can be used against him or her in a criminal proceeding. Thus, when Nelson and Taylor observe that “In a criminal case, a more likely outcome for such an offense is incarceration and/or a criminal record,” we might well ask why Colgate is not more concerned about due process in on-campus proceedings that could well amass a record of evidence for an eventual criminal trial?

A key issue is the burden of proof. The “preponderance of the evidence” standard means that misconduct need not be proven beyond doubt but rather, “more likely than not … just need more than 50 [percent],” as the University’s attorneys put it in their presentation. Why not set the bar higher? That, Nelson and Taylor tell us, “would prioritize one student’s interests over others.” Well, fine: let’s elevate “A says/B says” to some sort of proof. But Colgate does not even honor that principle: when one student can be punished or expelled based on allegations from another who need not appear and who cannot be required to produce evidence – in a situation, again, where the accused is denied counsel – and where the burden of proof is no higher than “yeah, well, I guess maybe so,” the University has already decisively relegated one student’s interests to the dumpster.

Nelson and Taylor then argue that “cross-examination in a hearing (as Professor Johnston appears to suggest) would chill the reporting of misconduct by those who wish to see it addressed but who fear retaliation or the intimidation of cross-examination.” Maybe so – in fact we do not know – but against any such apprehensions it must be remembered that the accused faces potentially serious punishment. Should that not justify the right to challenge the evidence on which such punishment would be based, along with those who present it? False and malicious allegations sometimes arise, humans being what they are, but let’s stipulate for now that the overwhelming majority of complainants and witnesses will act in good faith. Even then, witness accounts can be unreliable or contradictory and events can be open to multiple interpretations. Anyone alleging serious misconduct on the part of another should think carefully about doing so, and should be willing to stand behind his or her story. Why should allegations be allowed, in effect, to stand without challenge? To do so just might be to “prioritize one student’s interests over another.”  

In support of their argument against cross examination and the right to demand that evidence and witnesses be produced, Nelson and Taylor observe that “Colgate – like most other schools – does not have the legal power to compel witness testimony,” and that “colleges and universities do not have the legal power to conduct forensic investigations or to gather evidence in a way that is similar to law enforcement.” Quite so: but then, given what is at stake in disciplinary proceedings and possible subsequent criminal trials, why should we be hearing and judging such cases at all? I believe that beyond a certain threshold of seriousness – misdemeanor versus felony, perhaps, but other and better distinctions can no doubt be drawn – serious allegations should go directly to law enforcement and the criminal justice system. Yes, that would further up the ante for those alleging misconduct, although I have also read arguments that students can be just as intimidated by the prospect of bringing a charge before a body consisting, in part, of their fellow students. But the far broader benefits would reside in the due process guarantees that would then be available to all concerned.   

Three brief final points: Nelson and Taylor dispute my report that the university does not uphold due process because it would be “inconvenient, expensive or awkward” to do so, but those statements were made by the University’s own attorney. They say that the current system is intended to serve the campus community “in a timely and effective manner” – an odd claim indeed, in light of that attorney’s contention that there is “no requirement for … a ‘speedy’ resolution.” And as for the claim that my comments were in error regarding the lack of on-campus recourse, that point too was drawn from the attorney’s comments, which were not to the effect that there was no appeal procedure – there is one, we agree – but rather that once such a procedure has ended, there is no further recourse on campus. In effect, you’ve been found responsible within the University’s own system, defined by the University’s own rules, administered by the University’s officials, and then can appeal to … that same university apparatus. Maybe you don’t like it? So sue us. Your attorney will have a hard time figuring out what happened in the on-campus process, because she or he wasn’t allowed to be there.

The time has come for a free and open discussion of the SCB and of other disciplinary procedures on campus – one in which the administration gives genuine consideration to arguments maintaining that it has got some important principles dead wrong. To do that is always difficult – all the more so now, because doing so might concede some important issues that are currently being litigated in connection with a student’s possible mistreatment at the hands of a different disciplinary body. But ultimately, the University’s willingness – or lack of it – to launch that sort of reassessment will say a great deal about the extent of its commitment to justice.