By Adam Liptak at The New York Times
It was a bland bit of guidance from the Department of Education, cast in legal language and tucked into a footnote two-thirds of the way through a 46-page document about how colleges and universities should address sexual assault on campus.
But it did not sit well with Celia Wright, president of the student body atOhio State University. The footnote “discourages” having students sit on conduct boards in cases concerning sexual violence. Ohio State and many other campuses no longer let students serve.
Ms. Wright had sat on her school’s disciplinary panel, and she thought students had an important role to play in assessing misconduct by peers. “Students are essential to these hearings,” she said. “They determine whether or not you’re part of the community — by the community.”
Ms. Wright and student leaders from 75 other colleges and universities, representing 1.2 million students, have sent a letter to the department urging it to reconsider, citing “significant unintended consequences” and even discrimination against students who would sit on panels.
CreditSam Greene/Ohio State University
The issue is part of a larger debate about how campus conduct hearings should coexist with the criminal justice system when addressing matters as serious as rape. The Education Department has been adamant that administrators respond aggressively when students complain of sexual misconduct — whether or not they also file a claim with the police.
Schools that fail to follow that guidance may risk losing federal money.
Dorie Turner Nolt, the department’s press secretary, said officials there “look forward to opening a dialogue with the student leaders” on the composition of conduct boards. “The voice of students is critical,” she said, “as we continue the work of ensuring every college is a safe and healthy environment free from the threat of sexual assault or harassment.”
Indeed, the conversation surrounding sexual violence and the movement to change the culture, the student leaders wrote, “is one that, in many ways, defines our generation.”
No: Amateurs in Adjudication
There are three commonly given reasons for limiting conduct panels to faculty members and administrators. The first is that students lack the experience and sophistication needed to make decisions that may have lifelong consequences for the accuser and the accused, who could face expulsion.
Even that understates the problem, said Joseph Cohn, the legislative and policy director of the Foundation for Individual Rights in Education, which is skeptical of the entire enterprise of adjudicating serious crimes on campus instead of in the courts. “It’s only targeting one aspect of the incompetence, when the whole process is infected by incompetence,” he said. “When you have an 18-year-old student and a librarian deciding whether to end an 18-year-old’s career, you have to wonder about that.”
Neither students nor faculty members are up to the job, said Brett A. Sokolow, executive director of Atixa, a professional association of school administrators in charge of complying with Title IX, the federal law prohibiting sex discrimination in education. “Those individuals are rarely as well trained as administrators,” he said. “Experience matters.”
Some legal experts are questioning whether members of the college community are being adequately prepared to evaluate evidence like rape kits and medical reports, to weigh the conflicting accounts of two students whose judgment and memory may have been impaired by alcohol, and to not reflexively favor the accuser in close cases.
A second reason often given for excluding students is that they cannot always be trusted to maintain the confidentiality of the sensitive information that emerges in sexual misconduct hearings.
But the most important reason, Mr. Sokolow said, is that many victims may not come forward if they know their peers will judge them. The process is difficult enough, he said, without forcing victims to face people they know already or may later see in classrooms, cafeterias and dormitories.
Yes: A Jury of Your Peers
Michael Herbert, Yale’s college council president and a signatory on the letter sent to the Department of Education, said students acting as hearing officers can “help bridge the generational gap.”
“Students have a better perspective on context,” he said, “and can see through the ambiguity that one side or the other may try to create.”
Ms. Wright adds that social media can be particularly baffling to older members of the university community and that students “can translate a culture that can be foreign to faculty and staff.”
Student leaders acknowledge the need for training, though they point out that no particular expertise is required to serve on a criminal jury. “At most institutions,” their letter said, “student volunteers receive extensive training at the beginning of the academic year, and additional direction before each hearing — the same amount of training provided to faculty and staff volunteers.”
In light of that, Ms. Wright said, the trend to exclude students seems arbitrary: “We could graduate and get a job at the university, and serve the next day.”
She said her training had been substantial, covering the legal definition of rape, the meaning of consent, cultural misconceptions concerning provocative behavior, and the trauma that survivors experience; it even included a presentation from a victims’ advocate. It did not, however, delve into the evaluation of forensic evidence. In most cases, Ms. Wright said, the question was not whether sex had occurred but whether it had been consensual.
Concerns about confidentiality were addressed by requiring student panelists to pledge secrecy in writing. They faced disciplinary charges of their own for violations of confidentiality. As for the parties’ discomfort facing students they know, it may be more of a problem at smaller colleges, said Mr. Herbert of Yale, where students still serve on disciplinary panels.
Some schools give the complainant and accused a list of potential panel members and let them strike the names of those they fear are biased against them. Mr. Sokolow proposes a similar idea, on a broader scale.
“I can solve the problem instantly,” he said. “Simply offer a choice. You let the complainant choose whether to appear before a panel including students.”