Earlier this week, Texas Tech University student newspaper the Daily Toreador reported on elements of the student judicial process that have inspired mixed reactions from students and some worrying remarks from administrators. Many of the comments from the Texas Tech community reflect the worryingly common presumption that students accused of conduct code violations are guilty. At times, students and administrators even seem to forget the seriousness of the charges handled by the university’s disciplinary system.
The Daily Toreador reports:
Amy Murphy, Tech dean of students, said the process is a learning opportunity for students, and administration tries to ensure it will be conducted in the least adversarial way possible.
When it comes to sexual assault cases—in which a student’s educational career depends on whether it can be proven that he or she committed a serious, sometimes violent offense—how can the fact-finding process not be adversarial? These aren’t circumstances involving parties working towards a common goal. The complaining party or the institution aims to demonstrate one set of alleged facts and have the accused student punished—maybe expelled. The respondent aims to provide evidence to a contrary set of alleged facts, defending himself against the charge. The competing aims mean the proceeding is inherently adversarial.
Murphy’s characterization of the process as a “learning opportunity” presumes that the accused has done something wrong and needs to be taught a lesson. But the only lesson innocent students will learn from a system that does not allow them to fully defend themselves is that colleges frequently ignore their legal and moral obligations to protect the rights of all their students. That’s probably not the lesson Murphy was referring to.
The report continues:
Also a part of this model, she said, is the decision that students are not able to cross-examine witnesses, nor are the students’ advisers, during the hearing.
If cross-examination were to be allowed, she said, it would create a chilling effect for future possible reports.
Increased reporting, though, cannot be the consideration that trumps all others. It may be that more victims would report if their allegations were assumed true without any fact-finding process at all, but such a system would be wholly incompatible with our society’s longstanding principle that people are innocent until proven guilty. And since there is so often little or no evidence in sexual assault cases beyond the complainants’ and respondents’ testimony, cross-examination is often the critical tool with which the fact-finders determine whose story is more credible. It is with good reason that the Supreme Court has called cross-examination the “greatest legal engine ever invented for the discovery of truth.” Texas Tech’s written policies appear to allow parties to a case to question witnesses through the investigator or student conduct officer, but this provision contains no guidelines about whether the officer may omit or include questions at his or her discretion—an issue FIRE has seen come up in past disciplinary cases.
Thankfully, not all members of the Texas Tech community are content with the current system. Sophomore Andy Johnson, for example, objected to the fact that accused students couldn’t have a representative help them “know what to say and what not to say” throughout the process. Texas Tech allows students to hire attorneys only for cases that involve criminal proceedings and does not allow attorneys to actively participate in hearings. According to the Daily Toreador, “[Johnson] said if he could change the system, he would make it more like a court system because college is his real world right now, so it should resemble the real world.”
Of course, a rape on campus is a rape in the real world, so sexual assaults should be dealt with in the criminal justice system in order to protect the community at large. But if schools are handling allegations of sexual assault on their own, they certainly should recognize that the results of the hearing can have profound effects for the students involved that reach far beyond the campus gates.
Unfortunately, Murphy isn’t the only administrator who misunderstands what’s at stake in campus disciplinary hearings:
Brittany Todd, associate director with the Office of Student Conduct, said the decision of what to say and what not to say is one she deals with often in the office. The office, she said, is there to help students, and telling the truth can help students’ cases more than hurt them.
Apparently Todd isn’t one of the five million people who has watched a viral YouTube video of a professor and former criminal defense attorney explaining why you should never talk to the police without an attorney. Those who have know the incredible potential for seemingly innocuous statements to be used against an individual in a criminal court. And since anything an accused student says in a disciplinary hearing can be used against him or her in a criminal hearing, the lessons of that video apply to a student speaking in their own defense during campus disciplinary procedures, too.
According to the Daily Toreador, a Texas Tech student who was expelled for alleged participation in hazing is suing the university for due process violations, among other claims. FIRE has not reviewed the facts of that case. But we sincerely hope that Texas Tech administrators take this opportunity to review the university’s disciplinary procedures and ensure that in the future, students accused of conduct violations—particularly the sort that carry with them life-changing stigma—are afforded a fair hearing.