April 2007
A Summit County, Ohio, jury found Charles
Plinton not guilty of selling drugs to a confidential informant in 2004.
A few weeks later, a University of Akron disciplinary board found him
"responsible" for "selling drugs to a confidential informant."
The difference between those two words, guilty and responsible, may not sound
meaningful to the average person. But it’s a distinction that begins to explain
the secretive world of college justice in which campus committees may re-try the
facts of serious crimes after criminal courts have already decided them.
Critics see the hearings as unaccountable Star Chambers marshaled to advance
political and ideological agendas. "Campus tribunals are the ultimate ‘kangaroo
court,’ an affront to the rational thinking that is supposed to underlie the
academic enterprise," said Boston-area attorney Harvey A. Silverglate.
He co-authored "The Shadow University" with Alan Charles Kors and helped found
the Foundation for Individual Rights in Education. Disciplinary hearings are not
trials; they are more akin to union grievance procedures and other types of
administrative law hearings that have much looser rules.
Students usually aren’t going to get a lawyer for one of these hearings. The
university’s representative may advise the panel on how to conduct the hearing;
in criminal court, the prosecutor would never advise the judge on how the trial
should proceed.
Criminal trials are open to the public and subject to public scrutiny. Student
privacy laws keep most campus hearings closed to the public and the records
confidential, known only to the student or perhaps a student’s parents,
depending on age.
To lower students’ expectations of due process, universities are advised to use
nonlegalistic language to describe their procedures. It’s not defendants and
trials; it’s respondentsandhearings. It’s not evidence, it’s information.
Students are not found guilty; they’re found responsible or in violation. They
aren’t sentenced, they’re sanctioned.
Changing the word "evidence" to "information" is an attempt to avoid defamation
lawsuits because hearing boards cannot accuse students of committing crimes,
Silverglate said. "It’s meant to keep people from expecting that the campus
system is like the criminal justice system in the real world and from expecting
a decent level of fairness," Silverglate said.
Universities once kept an even tighter leash on students, standing in place of
the parent. That control loosened with the social revolutions of the 1960s, but
made a comeback in the 1980s and 1990s as universities attracted more diverse
student bodies and sought to provide an educational refuge from racism, sexism
and other social evils.
What’s changed, said Silverglate, is that campus hearing boards are now deciding
serious criminal matters, especially hot-button issues such as date-rape, sexual
harassment and hate speech.
"If the student is convicted in the criminal courts, the schools throw out the
student, relying on the court’s judgment," Silverglate said. "If the student is
acquitted, most schools re-try the student, convict him, then punish or expel
him. It is a completely loaded deck."
The National Center for Higher Education Risk Management consults with
universities throughout the country on how to lower students’ expectations of
due process by removing words that evoke the criminal justice system.
Brett A. Sokolow, an attorney and president of the Pennsylvania-based nonprofit,
said he hasn’t worked with the University of Akron. But he’s not surprised that
a student found not guilty in a criminal court would still be found
"responsible" at the university level.
"By definition, a college’s lower evidence standard means that they will often
find a student in violation of the conduct code for an offense that results in a
not-guilty verdict in court," Sokolow said.
It may be legal, but is it fair? Sokolow thinks so. "I think many people realize
we’re not convicting students of crimes, and that colleges need more latitude to
ensure safety within a closed, trusting community," Sokolow said.
The higher courts have given universities a wide berth in enforcing their own
policies, but they do require some due process. Evidence against a student in an
administrative hearing should at least be "substantial," he said.
That standard is considerably lower than "beyond a reasonable doubt," the
highest level that criminal juries need before convicting someone. The
"substantial" standard is even lower than "preponderance," which simply means
that guilt is more likely than not 50 percent of the evidence plus a little.
Sokolow figures that the substantial standard is satisfied if a third of the
evidence points toward guilt. That’s a very rough estimate, Sokolow said, but
it’s still less than half.
"Because no one goes to jail, the standards are more relaxed," Sokolow said.
"The more serious the consequence, the more process is due. The courts do not
consider suspension or expulsion as extreme deprivations of liberty or property,
comparatively speaking."
Evidence standards alone are no guarantee of due process because they can mean
different things to different jurors, but standards do provide a guide.
"More than half of colleges use preponderance," Sokolow said. "Many use clear
and convincing. A small number use substantial evidence, but it is the minimum
standard required by law."
PROFESSOR CALLS HEARING ‘ABERRATION’ Plinton’s former department head, Professor
Raymond Cox, said a higher standard of evidence probably wouldn’t have helped
Plinton. The panel that heard Plinton’s case decided 3-2 that he was
"responsible" for "dealing drugs to a confidential informant." “That’s kind of
scary, but that’s the reality," said Cox, who has a background in administrative
law. "Clearly you had three people who said ‘I believe cops.’ That’s a
100-percent statement."
Cox
said the university is "very, very sensitive" about drug use on campus. "They’re
going to bend over backwards to avoid making a mistake that permits people to
stay," he said. "It does give you pause."
He
said he generally supports the university’s hearing process, and believes the
Plinton case was an aberration. Cox sat on hearing boards during the 2004-05
school year and always thought of Plinton when he walked into the room. "The
process is limited by the strengths and weaknesses of the people sitting in
judgment," Cox said.
Knight Ridder Newspapers: http://www.southend.wayne.edu/modules/news/article.php?storyid=2348.
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