Imagine, for a moment, being accused of a serious offense and then finding out that the detective in charge of investigating your case would also be prosecuting it. Not only that, that same individual would also be deciding whether you are guilty and determining your sentence. You’d probably think that was a bit unfair. Unfortunately, that’s the reality that a growing number of college students face when they are accused of misconduct on campus—and it’s a trend the federal government is encouraging.
Torch readers will remember the ongoing case of George “Trey” Barnett, who was suspended from the University of Tulsa (TU) for “harassment” because of social media posts that another person admitted—in a sworn affidavit—to writing. Barnett was found responsible of the offense, without a hearing, after an investigation conducted solely by TU Senior Vice Provost Winona Tanaka. Tanaka also imposed Barnett’s sanctions—among them suspension from TU until at least 2016 and being barred from ever finishing his original major.
What do TU’s policies have to say about this? Well, it depends on who you ask. After a torrent of negative publicity, TU President Steadman Upham issued a statement asserting:
The case in question was not a student conduct case, but investigation of a complaint involving harassment. Under the harassment policy all proceedings are bound by confidentiality, and a hearing is not part of the process.
But as many have pointed out, TU’s harassment policy states that “investigations and, if appropriate, hearings shall be conducted in accordance with the appropriate governing document,” and lists “The Student Code of Conduct” and “The University of Tulsa Statement on Rights, Freedoms and Responsibilities” as such governing documents. These documents, in turn, afford students accused of misconduct the right to a hearing. The TU administration has yet to address this glaring inconsistency.
Of course, as the Collegian student newspaper’s Kyle Walker notes, TU seems to take the view that its own policies can be ignored by the administration whenever it suits them, so perhaps they simply don’t feel the need to explain themselves. Walker points out that TU’s written policies are essentially “only for your reading enjoyment” because the school certainly did not abide by them when it refused to provide Barnett a hearing and instead relied solely on Tanaka’s judgment to decide Barnett’s innocence or guilt. This system—in which a single person acts as investigator, prosecutor, judge, and jury—is fundamentally unfair to the accused, and TU’s treatment of Barnett is more evidence of that.
FIRE has repeatedly criticized this model of campus adjudication, which does away with the concept of a neutral and impartial fact-finder, denies students the ability to confront their accuser and directly challenge the evidence against them, diminishes the ability to judge the credibility of witnesses when challenged on their testimony, and greatly increases the risk that a single person’s bias or extrinsic incentives might improperly influence a finding of guilt. The manifest unfairness of the single investigator model thus reduces the reliability of, and confidence in, the disciplinary process itself. And, in TU’s case, it produced an absurd finding that sets a terrible precedent for other students at TU, who could also be found guilty of harassment for another person’s speech.
Unfortunately, the denial of a hearing to Barnett is an indicator of the rapidly changing landscape of the college disciplinary world. Across the country, colleges and universities are moving toward this “single investigator model,” particularly in cases involving allegations of sexual misconduct, encouraged by the White House and outside legal consultants who stand to profit from such a system. TU’s adoption of the model in Barnett’s case demonstrates the university’s troubling allegiance to a system that will not produce accurate, reliable findings.
In TU’s case, the use of a single investigator system for harassment cases (and its disregard for its own stated policies and student rights), has been shown to lead to truly perverse outcomes. Why, after all, should students facing much less severe disciplinary charges, in which prolonged suspension is not on the table as a potential sanction, be entitled to a hearing, while Trey Barnett was not? This prompts more frightening questions. What is stopping the school from using this model for all alleged violations? And what if other institutions, following the federal government’s recommendation and TU’s lead, begin to use the single investigator model to respond to all allegations of student misconduct? It’s difficult to imagine how students could expect to be treated justly under such a system.
The University of Tulsa failed Barnett miserably in punishing him for the speech of a third party. Perhaps an impartial and unbiased hearing panel, after considering the evidence, would have seen reason and reached a different conclusion. Unfortunately, because of the growing use of the single investigator model, instead of a hearing panel, many more students are likely to face the same unjust outcome as Barnett.