College Disciplinary Boards Pass Judgment In Secret, Often Impose Questionable Penalties

November 23, 2014

By Colin Binkley/Columbus Dispatch and Sara Gregory/ Student Press Law Center at The Columbus Dispatch

The University of Toledo found a student responsible for his role in the stabbing death of his roommate, but he wasn’t expelled from the school or charged criminally.

The University of Wisconsin-Oshkosh found a student responsible for sexual assault and gave him a written reprimand, kicked him out of his dorm for a month, and ordered him not to have any minors as guests.

After Miami University found a student responsible for assaulting one woman and stealing another woman’s pizza on the southwestern Ohio campus, it placed him on probation and ordered him to write an essay.

Colleges across the country use campus disciplinary boards to pass judgment on students accused of violent crimes, including rape and assault. Sometimes, schools handle crime and punishment without ever reporting violations to police. Most cases never go to court.

A joint investigation by the Columbus Dispatch and the Student Press Law Center found that campus judicial systems, operating in secret, often impose light sanctions for serious infractions: sexual assaults, physical assaults resulting in serious injuries, robberies, and other violent crimes. Some of the punishment amounts to little more than writing a paper.

Both victims and the students accused of these violations have said the system is unfair and broken.

The investigation also showed that most schools either don’t understand or refuse to follow federal and state laws that make certain records in these cases public.

The U.S. Department of Education enforces the student-privacy law that is frequently and improperly used to restrict access, and it has been criticized by many — even the law’s author — for applying the law incorrectly. Officials with the department declined multiple requests for an interview.

In many ways, campus conduct boards act like criminal courts. But those acting as judge and jury in these private proceedings are not lawyers. They are college administrators, students, and faculty volunteers with little or no legal training.

Between the scales of campus justice hang heavy implications: These panels have the authority to expel students or let those accused of violent acts stay on campus.

As part of this investigation, the Dispatch/​SPLC asked 110 colleges, including the 13 public universities in Ohio and two of their branch campuses, to provide disciplinary records for cases involving violent crimes.

Federal student-privacy rules explicitly allow colleges to release the names of students who are found responsible for a crime of violence. Still, more than 75 percent of schools did not provide any documents — even in states where open-records laws require colleges to release such information to the public.

Only 25 colleges provided records.

Collectively, those 25 colleges found students responsible for a violent offense in 1,970 cases since 2010. A total of 152 students were expelled. Five students who were found responsible for sexual assaults weren’t suspended, expelled, or even placed on probation; they essentially were given a pass.

Students faced criminal charges in only seven of 158 sexual-assault cases.

‘A recipe for error’

Presented with the newspaper’s findings, Ohio Attorney General Mike DeWine said his office will conduct a sweeping examination of how the state’s public universities use their student disciplinary boards and train their members.

“To me, as a parent who has sent eight different children to college, what I expect is a safe environment,” said Mr. DeWine, whose office serves as the state’s chief law-enforcement agency and as the attorney for Ohio’s public universities. “I expect those who have knowledge of something that would indicate it’s not safe to make that public, and certainly to notify the students and to notify the parents of the students.”

That often does not happen.

The results of the campus judicial process are virtually never revealed.

Those who work in campus judicial systems essentially ask the public to trust that they’re doing justice.

Mitchell Evans was a junior at Miami University when he was brutally beaten at a campus party. His two assailants pleaded guilty to misdemeanor charges. The university placed them on probation, ordered alcohol education, and required that the pair write essays.

Some said it’s challenging because they often face cases that are not black-and-white. But they say that, most of the time, they get it right.

“The really complex cases, like sexual assaults, are hard. Prosecutors won’t take them on, yet we’re expected to and required to,” said Andrea Goldblum, a former conduct officer for Ohio State who is now a consultant for Margolis Healy and Associates, a national campus-safety firm.

Critics say that colleges simply are unequipped to handle serious cases on their own.

Their training is very limited, said Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a civil-liberties group in Philadelphia.

“That is a recipe for error, and it really should be deeply troubling to all of us,” he said.

Soft punishments

A police officer found Josiah Galat’s body behind a University of Toledo dormitory in 2012. He was 20 and had been stabbed. Police also found his roommate, Erik Littleton, then 19, of Detroit, who had collapsed along a nearby road. He was critically injured but survived.

The two apparently had gotten into a knife fight while on high-powered drugs. Mr. Galat had defensive wounds; Mr. Littleton did not, according to police.

The case went before a Lucas County grand jury, but no one was charged. Mr. Littleton said he ran away after Mr. Galat stabbed him. He denied that he killed Mr. Galat, suggesting that Mr. Galat inflicted his own wounds.

In a separate, campus disciplinary process, UT found Mr. Littleton responsible for his role in the stabbing. Campus administrators cited him for violating a rule that prohibits abuse or harassment in any form.

His punishment: a one-year suspension, banishment from the dorms, 100 hours of community service, and a 10-page paper.

“They have taken what could be a horrific crime and treated it like a grade-school fight. … It’s virtually a slap on the hand,” said Josiah’s father, Mike, of Lexington, Ohio.

University of Toledo officials declined to discuss the case, saying it would violate student-privacy laws. Lawyers who represented Mr. Littleton didn’t return calls.

In contrast to the Toledo case, students accused of trespassing at other colleges have received longer suspensions than Mr. Littleton’s. Universities have expelled students for violations even after they were cleared by criminal courts.

At UT, three students have been expelled since 2010 for property crimes, such as theft or destruction of property.

Some schools are more likely to expel than others. The University of Akron has expelled 41 students since 2010, records show. The University of Cincinnati, which has almost 10,000 more students, expelled five during that span.

Some colleges rely on “reflection” papers as a form of punishment for serious violations. In all, judicial boards ordered students to write essays about their violations in 394 cases, more than half of which involved physical or sexual assaults. In the vast majority of those cases, any additional punishment was no greater than probation.

“It’s really hard to see how these panels are able to consistently reach fair and reliable findings when, realistically, they don’t really know what they’re doing,” said Mr. Cohn, of the Foundation for Individual Rights in Education.

That’s how Mitchell Evans felt about how his case was treated.

In the fall of 2010, Mr. Evans thought he was among friends at a Miami University party in Oxford, Ohio, when he was attacked by several students after a game of beer pong. They beat his face bloody and broke some teeth before he managed to get back to his apartment — where one of the men from the party forced his way in and assaulted him again.

The incident led to charges of aggravated burglary and assault against Joseph Pfeifer, who was 19 at the time, and assault against Zach Pfeifer, 20. The two listed a home address in Mason, and both pleaded guilty to reduced misdemeanor charges. The school’s punishment was probation, alcohol education, and to write an essay. When reached for comment, Joseph Pfiefer said he didn’t assault Mr. Evans. Zach Pfeifer could not be reached for comment.

Miami issued similar punishment when a student kicked and wrestled with a pregnant female police officer, and when one female student struck another at an anti-sexual assault rally.

All of those cases resulted in criminal charges. None of those cases warranted a university suspension as part of the final punishment.

“I don’t think punishment fits what happened in my case or others where people are getting hurt,” said Mr. Evans, 24, of Mason, who is now a student at the University of Cincinnati.

Miami officials said they need flexibility to determine punishments for complex cases.

“I always say, you have to walk in our shoes to hear our cases and to make a determination as to what is an appropriate outcome,” said Susan Vaughn, director of office of Ethics and Student Conflict Resolution at Miami.

The legal shield

Since 1974, most student records have been confidential under FERPA, the Family Educational Rights and Privacy Act. Colleges that want federal money, such as Pell Grants, must agree to keep private any records “directly related” to a student. Violators can lose all federal funding, although no school has ever lost funding for that reason.

For decades, victims’ rights advocates and journalists have fought the broad application of those rules. In 1996, editors at Miami University’s student newspaper sued after the school refused to provide disciplinary records spanning three years. The Ohio Supreme Court ruled that such records are not educational records and should be made public.

When the U.S. Department of Education sued to stop Miami from releasing the records, Congress intervened and changed the law.

Then-Congressman Mark Foley introduced the amendment that made parts of some records public: names, types of offenses, and sanctions in cases of violent offenses.

More than 15 years later, and despite clear direction from Congress and the courts, universities still keep such records secret.

Federal rules say that colleges “may” release these records. At public colleges, state records laws determine whether a school must release records. No state has a specific exemption allowing schools to withhold disciplinary board outcomes, although some have laws that allow “education records” to be withheld. Nothing in Ohio law allows schools to withhold disciplinary records for those found responsible for offenses.

At private colleges, administrators are allowed to make the call about how much to release. But they are not prohibited from releasing disciplinary board outcomes, as some suggest.

The author of the law, former U.S. Sen. James L. Buckley of Sharon, Conn., told SPLC last week that colleges and universities have “twisted” FERPA by invoking it to withhold vast numbers of nonacademic records. He said it never was his intent to protect cases of disciplinary offenses.

“If someone commits a crime, I don’t see any rationale for treating students differently than you treat anyone else,” Mr. Buckley said. “I hope somebody in Congress will take an interest in the entire law and rewrite the blessed thing to make it clear that you are talking about certain narrow areas of information.”

The secrecy of the campus judicial process has created a system that students and the public cannot trust, said Carolyn Carlson, a Kennesaw State University journalism professor who in the 1990s led reporters’ efforts to make the disciplinary system more transparent.

“As long as it’s a secret system, they can’t see how everybody’s being treated,” Ms. Carlson said. “They have to take somebody else’s word that they’re being treated fairly.”

Schools: University of Toledo