College Discipline For Serious Crimes Questioned

December 20, 2014

By Kelly Cernetich at The Washington Times

ALTOONA, Pa. (AP) – Years ago, a student accused of cheating or plagiarism would likely appear before a student dean or disciplinary board for punishment.

Now, students accused of offenses – including drug possession, theft, even sexual assault – may face that same board for a suspension or expulsion.

Local college officials maintain that the boards try and usually succeed in making the right decision.

But in the wake of a November magazine article that skewered a southern college for failing to act on allegations of gang rape, some have called into question a college’s ability to fairly adjudicate serious crimes.

Getting a handle on alcohol

Unsurprisingly, the majority of criminal cases on local college campuses are drinking offenses.

Data from the private institutions of Juniata College, Mount Aloysius College and Saint Francis University, as well as the public ones of the University of Pittsburgh-Johnstown and both Penn State’s University Park and Altoona campuses, show liquor arrests and disciplinary referrals for liquor violations outnumber all other cases.

The information is published under the Clery Act, which requires universities participating in federal financial aid programs to track and disclose information about crime on and near campuses.

Compliance is monitored by the U.S. Department of Education.

Data show the six institutions handled a combined total of more than 5,500 alcohol cases between 2011 and 2013, more than half of which were referrals to internal disciplinary systems.

While the process varies by campus, students caught drinking while underage usually go through an administrative process wherein they meet with a dean of students or student conduct office representative to discuss his or her crime.

Often, a letter is sent home to the student’s parents – if the student is listed as a dependent under Internal Revenue Service guidelines – and perhaps to academic advisers or athletic coaches.

Many pay a fine, complete an alcohol-education class and endure a probationary period of one or two semesters, although further action may be needed if the student’s drinking is problematic.

“What we’re really looking for there is to help students identify if they’re problem drinkers and need help,” said Dan Cook-Huffman, assistant dean of students at Juniata College.

Otherwise, the process is all about education and making responsible decisions, Cook-Huffman said.

Encouraging smart decisions

For campuses that ban students from possessing alcohol on campus (all local colleges save for Pitt-Johnstown and Juniata), the process can seem like a mixed message, said Jay Burlingame, Penn State Altoona director of student conduct.

The Altoona campus’ drug and alcohol program, completion of which is mandated for first-time underage drinking offenses, doesn’t necessarily deter drinking.

But it encourages responsibility without administrators condoning it outright.

“I can’t do that, because it (drinking) is a policy and code of conduct violation,” he said. “But we try to help students. We are an educational institution, after all. We’re not really here to lower the boom on them. We’re here to help them learn from their mistakes.”

Cook-Huffman said Juniata’s approach to underage drinking also produces positive results.

“The students who come in for an alcohol violation … don’t come back for another one,” he said. “That doesn’t mean they’re not going to drink again, but it tells me they’ve learned to manage themselves well” and not cause harm to themselves or others.

Frank Montecalvo, vice president for student development at Saint Francis University, said an institution’s alcohol policy is just one of many factors students weigh when deciding where to go for college.

At Saint Francis, alcohol is allowed only in restricted situations, where of-age students are permitted to host a speakeasy-type event where alcohol is doled out in cycles to teach drinking in moderation.

Those limitations allow the university to meets its obligation to educate students and show drinking can be done in a responsible way without promoting it, he said.

Some students have pushed back against restrictive alcohol policies, like at Penn State’s University Park campus, where a ban on undergraduate possession of alcohol took effect in fall 2011.

Sam Janesch, editor in chief of Penn State’s student newspaper The Daily Collegian, said student journalists have been among those backing changes.

College officials have maintained in interviews with the student paper that the policy has resulted in fewer parties and less “high-risk” behavior; meanwhile, Penn State’s undergraduate student government board has said that of-age students should have the right to drink if they want.

“There’s a lot of mixed reactions. It’s hard to tell where the administration is going to go,” Janesch said.

The newspaper editorialized in January that administrators’ arguments for banning alcohol are “beyond ignorant.”

Alcohol is easily found at football tailgates, and students who are not yet 21 have access to alcohol regardless of the school’s rules, the paper editorialized.

“Despite the current university policy, Penn State is by no means a ‘dry campus,'” it read.

Representatives from Mount Aloysius and Pitt-Johnstown did not return calls for comment.

More serious cases

Despite its prevalence at universities, an alcohol abuse case is unlikely to make its way to a disciplinary board unless a student is a repeat offender or if a student was under the influence when he or she committed a crime.

These boards are, however, assigned to weigh punishment for serious criminal accusations involving theft or violence – crimes that would be listed as felonies if they were taken up by police.

The issue attracted national attention after Rolling Stone published an article last month detailing a brutal and savage gang rape allegedly carried out on the University of Virginia campus in 2012. The story painted a damning picture of college administrators as unwilling and incapable of acting to prevent future attacks.

Further investigation revealed that parts of the story were untrue, and the magazine has since backed away from its reporting, but University of Virginia officials have pressed on with plans to reform its process for reporting and investigating sex crimes.

On the heels of that decision, critics are pressing more colleges to change the way they handle such cases.

College disciplinary boards usually are comprised of a mix of students and professors or other administrators. Members apply for the position and undergo a screening process to determine whether they’re right for the job.

Training, however, is limited: usually a minimum of about a dozen hours in computer classes or workshops, although more may be required depending on how long a person serves on the board.

The standard of proof required to render an accused student guilty also is low.

In criminal cases, prosecutors must prove a defendant is guilty “beyond a reasonable doubt.”

College boards, however, are mandated to use the low “preponderance of evidence” threshold, which requires only enough evidence to make it seem more likely than not that a crime has occurred – or that a minimum of 51 people out of 100 would agree the person is guilty.

System criticisms

Joe Cohn, legislative and policy director for the Philadelphia-based Foundation for Individual Rights in Education, said such boards were designed with the original mission of handling serious (albeit nonfelony) cases like cheating or perhaps minor thefts.

Using those same boards to adjudicate serious legal matters is dangerous, he said, especially when a victim of sexual violence sees the campus system as a replacement for a criminal investigation.

In addition to the low evidentiary standard, board members don’t have access to forensic evidence and can’t subpoena potential witnesses, he said.

Accused students don’t have a right to an attorney and can’t confront their accuser for cross examination.

Cohn said such systems lead to inconsistent results.

In extreme cases, his organization found some college officials weren’t acting on accusations if the accused was a star athlete or the child of a major donor, or the school didn’t want to be seen as violent. On the other hand, schools were suspending or expelling students without reliable evidence – or when the evidence was “overwhelmingly exonerating.”

That’s not the case at most colleges, he noted, saying most “want to get things right.”

However, he said, they lack the decades of legal experience required to do so.

Cohn said the source of more recent problems can be traced to the 2011 “Dear Colleague” letter distributed by the Department of Education.

The letter included guidelines for pursuing Title IX sexual assault cases.

Initially passed to address anti-discrimination in education, and most known for its impact on athletics, the law has since broadened to include sexual assault as depriving students of equal and free access to an education.

Failure to comply with the law means risking the loss of federal funding.

Although the department has never “pulled the trigger” on that threat, Cohn said, they have “loaded the gun and pointed it at schools.”

Such threats incentivize universities to overreact, and the results, in some cases, have turned into witch hunts.

“No one celebrates the people who defend accused rapists,” he said, but the process should be more fair.

Helping the victims

Several college officials interviewed for this article pointed to numerous studies that show rape is severely underreported in general, but especially so on college campuses.

Researchers from the U.S. Justice Department recently found that only about one in five campus sexual assault victims go to police; many of the victims said they declined to do so because the incident was too personal, and said they feared reprisal or believed reporting it wouldn’t help.

Burlingame, of Penn State Altoona, said colleges can protect victims’ safety by acting more quickly than police can. They can move a victim away from his or her alleged abuser and help students obtain medical treatment or counseling.

Burlingame said administrators also encourage victims to report crimes to police, but can’t force students to do something they don’t want to.

“We don’t really have the authority … if we don’t have a victim that’s willing to pursue criminal charges,” he said. “What do you do without a witness?”

Cook-Huffman of Juniata admitted that the disciplinary board’s evidentiary standards are more likely to result in convictions, but perhaps it’s a risk colleges have to take when safety is the utmost priority.

“For far too long, there has been a serious problem of sexual misconduct and harassment on college campuses. It’s really gone unanswered,” he said. “I think the criminal system has a pretty poor record of really handling sexual misconduct cases, as well. … I do think we’ve been living too long in a system where victims are not adequately addressed and not getting the justice they deserved.”

Several victims advocacy groups have come out in favor of the college disciplinary process, saying it’s helpful to victims.

Jackie, the UVA student about whom the Rolling Stone article was penned, told the magazine that when she reported her rape to an administrator, she was given options and told whatever her choice would be that it was the right one.

She could go to police, file a complaint with the school’s sexual misconduct board or meet with the alleged rapists informally to share her feelings. The men could be directed to undergo counseling.

“(The dean) presented each option to Jackie neutrally, giving each equal weight. She assured Jackie there was no pressure – whatever happened next was entirely her choice,” the article said.

The group Know Your IX, founded in 2013 by sexual violence victims whose stated goal is to end campus sexual violence, writes on its website that campus adjudication isn’t a replacement for police reporting, but might provide a better and perhaps faster way to protect students.

The website said there are many reasons victims don’t want to turn to the criminal justice system.

Some fear reliving their abuse through police and prosecutors’ questioning, the website says, or that they will be told the assault was their fault.

“They may fear retaliation from their assailant, who will most likely not end up prosecuted, let alone convicted; and they may be hesitant to send their assailants to prison,” the website says.

Cook-Huffman said he’s confident that none of the sexual assault cases at Juniata have resulted in unfair convictions.

“I really have a lot of faith in our process, that we’re not wrongly finding people responsible for things,” he said.

In addition, he said, the worst-case scenario for men accused of assault is expulsion.

“That’s not the end of the world. It’s not jail, and it’s not that you can’t continue your education. You just can’t continue it here for awhile – or at all,” he said.

Is it justice?

What about cases where a rapist, and possibly a serial rapist, is expelled? When innocence isn’t in doubt, the punishment still doesn’t fit the crime, Cohn of the educational rights group said.

“It’s dangerous to rely on expulsion as panacea of what we can accomplish here,” he said. “The worse thing the school can do is expel a student.”

A sexually violent predator expelled from his or her university can find victims elsewhere, Cohn said, and the best way to make sure that doesn’t happen is from thorough police work.

Montecalvo of Saint Francis said colleges are duty-bound to warn police, even if a victim doesn’t want to pursue charges, if administrators believe the person is dangerous.

“Any institution has a federal responsibility to warn of a threat. … Institutions should, and are in my opinion, required to warn its community,” he said.

A joint investigation from The Columbus Dispatch and the Student Press Law Center of Arlington, Va., published last month found that punishments handed down by campus disciplinary boards are “relatively light,” even for serious offenses.

One case cited by the investigation was a fatal 2010 stabbing of a University of Toledo student by his roommate. The two took a powerful hallucinogen and fought in a residence hall stairwell. One student had a hunting knife. Both were stabbed in the incident.

The university cited the student who survived for violating rules that prohibit weapons, drugs and physical abuse.

His punishment was a one-year suspension, a ban from dorm halls, 100 hours of community service and a 10-page paper.

The case went before a grand jury, but no one was charged.

When looking at other schools, the study showed trespassing charges led to harsher punishments than the one handed down at Toledo.

Cook-Huffman said no one wants “violent felons out walking the streets” after receiving a college suspension or expulsion, but the college can make it harder for a student to commit crimes at other colleges.

Many schools require transferring students to be cleared by a dean, and a reported rape or violent assault could be a roadblock to transferring.

“It’s not a panacea of a solution,” he said, but violent cases are rare and a suspension for an infraction can be educational.

Many students who are suspended come back after a semester or a year, Cook-Huffman said, and have told him they learned from their experience.

“The vast majority of … cases are not the kind of what was alleged at (the University of Virginia),” he said. “They’ve done something terribly wrong, but there is possibility for redemption for what they’ve done wrong.”

Room for changes

Cohn said no one thinks colleges should simply turn over criminal cases to police and back away.

Connections with and access to students gives colleges a means to encourage open dialogue and promote preventive education.

“They have an advantage that law enforcement doesn’t have,” he said. “Schools are in a really good position to play a vital role, but right now the politicians and all of us in society need to start asking the question: What is the smart role to ask each actor to play?”

College officials don’t need to wait for an accuser to be found guilty to move students away from each other. If officials see that a student is too emotionally fragile to take a major test or final, they can move it.

But police only have 72 hours to perform a rape kit, he said, and only 48 hours to collect blood samples to see whether a victim was drugged or too drunk to consent to sex.

No one wants to discourage victims from coming forward, Cohn said, but claims needs to be scrutinized, and someone accused of a heinous crime needs a fair chance of clearing his or her name.

“The worst thing that we can do is start making campus processes differ significantly from the criminal justice system,” he said.

Schools: Pennsylvania State University – University Park