‘Inside Higher Ed’, KC Johnson on the University of North Carolina’s New ‘Two-tiered’ Disciplinary Procedures

By on April 26, 2012

Yesterday, Inside Higher Ed reported on the University of North Carolina’s recent decision to revoke its Student Honor Court’s power to adjudicate allegations of sexual misconduct. Inside Higher Ed‘s Allie Grasgreen writes: 

The change, which some have sought for years, appears to be the most extensive yet in response to the "Dear Colleague" letter issued a year ago by the U.S. Education Department’s Office for Civil Rights.

[...]

But the change is also significant at the micro level: it marks a philosophical shift at UNC, where for more than a century, the student Honor Code states, "Carolina students have pledged not to lie, cheat or steal. Students enjoy a great deal of freedom at Carolina and have been entrusted to hold each other accountable for maintaining a just and safe community."

Hence North Carolina’s unusual practice of letting its students hear and decide all alleged cases of conduct and academic integrity violations.

But earlier this week, the North Carolina Faculty Council voted to remove allegations of sexual assault from the court’s jurisdiction. Chancellor Holden Thorp told the Daily Tar Heel student newspaper, saying of officials at the civil rights office, "The best way to comply with them is to redo the whole thing."

Following UNC’s policy revision, students accused of sexual misconduct will face hearings employing the "preponderance of the evidence" burden of proof, while students accused of all other violations of the conduct code will remain subject to the higher "beyond a reasonable doubt" standard. 

On Minding the Campus, Brooklyn College professor KC Johnson criticizes the resulting disparity:

Since the Student Honor Court retains jurisdiction over all other disciplinary issues, the new UNC policy creates a two-tier system of justice. All other offenses under the honor code require guilt beyond a reasonable doubt; an allegation of sexual assault–even though a far more serious offense than virtually anything else that the honor code addresses–requires only 50.1% proof of guilt, and in a system where the accused student still won’t have the right to a lawyer.

UNC’s new two-tier track for conduct code violations should be troubling to any supporter of fundamental fairness in campus judicial proceedings. Indeed, it will be interesting to see how many colleges and universities nationwide arrive at similar "two-tiered" systems. As Torch readers know, FIRE has been airing our concerns about the preponderance of the evidence standard for nearly a year now—and as institutions make revisions in their procedures to comply with the Office for Civil Rights’ mandate—our list of concerns about the preponderance requirement must now include the fact that it has forced at least one university to implement divergent judicial processes, affording students less due process when facing more serious allegations.

Schools: University of North Carolina – Chapel Hill Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections