Last fall, I was elected director of Ohio University’s Students Defending Students (SDS), a campus organization where students represent fellow students in university disciplinary proceedings and ensure they receive due process.
Having been a part of SDS since my sophomore year, I’ve had the rare opportunity to sit in on many student disciplinary proceedings. My duties even include cross-examining witnesses and giving oral statements on behalf of the students I represent. During this time, however, I have begun to see possibilities for students—particularly international students—to be deprived of a fair hearing by the campus disciplinary system’s procedures.
Problems often arise in these proceedings because of the “preponderance of the evidence” standard of proof that many universities use. This standard can be described as “fifty percent and a feather.” This means that the fact finder only has to be slightly more convinced than not that a violation occurred to find a student responsible.
In cases that turn on the credibility of witnesses, this low standard can be easily overcome through the testimony of a witness whose account carries more weight because of their position of authority. For instance, in hearings where the police officer or resident assistant who filed the report is present, their account can come off as more convincing simply by virtue of their position of authority. This is particularly true where the accused student has a previous record. While some assume that students only face short-term sanctions, that is not the case when it comes to international students.
There are approximately 975,000 international students attending colleges and universities across the United States today. While international students go through the same campus disciplinary proceedings as American students, the consequences for international students found responsible for disciplinary sanctions are potentially higher. International students are required to hold an F-1 visa to remain a student in the United States. If an international student is suspended, their F-1 status can be revoked and he or she will be forced to leave the United States within 15 days of being sanctioned. This means that if an international student faces a violation where suspension is on the table, they enter a hearing with the possibility of not just being suspended, but having their status revoked. This makes a fair hearing and the burden of proof even more consequential.
The only alternative to leaving the country is to transfer schools within the 15-day grace period, which is a practical impossibility. In some instances, these campus procedures can take a long time to conclude, leaving the possible consequences looming over a student for months and resulting in negative effects on their academic and social life on campus. Additionally, many international students have worked extremely hard to make their way to the United States to pursue an education, and losing that opportunity can have truly life-altering effects.
Often, these students face an inherent disadvantage in campus disciplinary proceedings because there may be a language or culture barrier between the student and the administrators trying the case. In addition, the students are often unfamiliar with campus disciplinary proceedings, or even the United States legal system in general. Many colleges and universities do not allow a student’s advisor (legal or nonlegal) to actively participate in proceedings, even if permitted to be present. This leaves many international students facing these foreign procedures virtually blind and alone.
The stakes are clearly higher for international students facing campus disciplinary proceedings. While an American student may return to campus after completing a suspension, an international student might never have that chance. This means that universities’ sometimes poorly-trained hearing boards are actually making decisions not about whether a student will be suspended, but whether or not he or she will be forced to leave the country.
The combination of inherent disadvantages that international students face and the low standard of evidence required to find a student in violation of the conduct code—fifty percent certainty and a feather—is not proportional to the consequences that international students face. This continues to raise the question of whether or not universities are supplying a fair process throughout their entire disciplinary system.
Samuel Flannery is a FIRE summer intern.