Response to Student Conduct Board Concerns

We have recently read Professor Johnston’s observations on the design and operation of Colgate’s disciplinary process in which he criticizes differences between that process and the criminal law system. There are fundamental reasons why, at Colgate and elsewhere, student conduct proceedings differ from criminal law processes. It is for these reasons that the vast majority of colleges and universities in the United States employ processes similar to ours.

Above all, the goals and outcomes of a student disciplinary process are to be fundamentally fair and educational in nature. 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. It is an essential part of a Colgate education: to hold students accountable for their behavior and to ask students to reflect on how their behavior affects others. Colgate’s Student Conduct Board process is designed to be fair to all parties affected by a case and to uphold community values and expectations as outlined in our student handbook.

Professor Johnston identifies real distinctions between criminal law processes and our student disciplinary process, many of which were discussed during the training session he references. However, resolving violations of a student code of conduct in a manner similar to adjudicating criminal cases is neither practical (given the limits of institutional authority) nor desirable (given our fundamental educational mission). In more serious cases of misconduct, such as violence, the appropriate course of action may be suspension or expulsion. In a criminal case, a more likely outcome is incarceration and/or a criminal record. This is one reason that the standard of proof is much higher for a criminal proceeding. In addition, requiring proof of responsibility “beyond a reasonable doubt,” as occurs in a criminal case, would prioritize one student’s interests over another’s in a manner contrary to the educational and community objectives of a student conduct process. By contrast, the “preponderance of the evidence” standard used by most colleges is designed to give equal weight to all parties with an interest in a case – the student who is accused, but also other persons who may be impacted by the conduct and the campus community at large. The primary goal is to examine evidence related to a violation of university policy and the code of conduct, which all students are expected to uphold.

These and other distinctions between disciplinary and criminal processes inform many aspects of college and university disciplinary systems. For example, most institutions permit their hearing bodies to consider written statements or interviews given by persons having knowledge of a matter. A requirement to subject any person who has provided information in support of an investigation to 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. Further, Colgate – like most other schools – does not have the legal power to compel witness testimony; thus, a requirement that witnesses be subject to cross examination would effectively preclude consideration of many serious cases. Similarly, 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. To expect schools to do so is unrealistic.

Similar explanations underlie the majority of the other aspects of Colgate’s conduct process that Professor Johnston criticizes. Student disciplinary proceedings are not designed this way because it would be “inconvenient, expensive or awkward” to implement the requirements Professor Johnston would appear to support. On the contrary, many of those requirements would make it impossible to have a functioning disciplinary system that enables Colgate to serve the interests of the entire campus community in a timely, effective manner.

As a point of clarification, in Professor Johnston’s characterization of the existing disciplinary process, he asserts that if a student’s rights are violated in the student disciplinary system, one may not redress this within the university system and the only recourse is to sue. This is inaccurate – Colgate’s disciplinary process includes an appeal procedure. If a student believes a procedural error has occurred, discovers new information or believes the sanction to be inappropriate, he or she has a right of appeal. Such appeals can and do result in corrective action in appropriate cases.

We welcome any suggestions from members of the campus community for improvements to the disciplinary process. Our code of conduct and procedures are required to be reviewed on a periodic basis to evaluate the need for changes. We are currently reviewing our academic integrity policies. When that process is complete, we will undertake a review of the disciplinary code and procedures and will seek the input of faculty, staff and students in that process.