'I've not encountered a process...that is less fair'
Repost of article published in The Duke Chronicle on May 1, 2017.
Legal experts, current and former students criticize the student conduct process
By Gautam Hathi
This is the second story in a multi-part series on the student conduct process. The first story, published last week, examined the experience of one student who went through the student conduct process and felt that she was treated unfairly. If you have had experiences with the Office of Student Conduct that you would like to share with The Chronicle in a confidential manner, please contact Claire Ballentine or Neelesh Moorthy.
Concerns with Duke’s student conduct process are neither isolated nor new, legal experts and others who have worked on the issue told The Chronicle.
“I’ve not encountered a process or an administration of the process in any school that is less fair than the undergraduate conduct board hearings that Duke students go through,” said Robert Ekstrand, Law School ‘98—a Durham lawyer who was involved in the lacrosse case and has worked on hundreds of disciplinary cases involving students at Duke and institutions across the country. “If I was a wrongly accused student, it is the last hearing process that I would want to have adjudicate my case."
Current and former Duke Student Government members who have worked on the student conduct policy told The Chronicle that there are problems both with the student conduct process and the outcomes resulting from it.
The Chronicle gave Stephen Bryan, associate dean of students and director of the Office of Student Conduct, an opportunity to respond to some of the specific statements and allegations in this story. This included statements about the overall fairness of the student conduct process, the exclusion of important evidence and experts from hearings, the lack of clear evidence for panel findings, advice from OSC for students to avoid getting a lawyer and the inability of the process to produce reliable outcomes. He declined to comment.
James Coleman, John S. Bradway professor of the practice of law, said that in his time at Duke, he has watched the student conduct process closely and has seen similar issues recur.
Coleman is co-director of the Wrongful Convictions Clinic at Duke and chaired the Lacrosse Ad Hoc Review Committee, which was convened by President Richard Brodhead during the 2006 Duke lacrosse scandal to investigate the behavior of the lacrosse team. He was also a member of a task force put together in 2007 to review the student conduct process.
“My view is that Duke’s whole disciplinary system needs a review,” said Coleman, a faculty advisor to sophomore Ciaran McKenna, who is currently contesting in court how OSC treated his case. McKenna was found responsible by two hearings panels for sexual misconduct and was suspended for six semesters.
A Durham judge has added to the criticism of the student conduct process during ongoing litigation involving McKenna. Superior Court Judge Orlando Hudson ruled that McKenna’s lawyers would likely be able to show in a trial that McKenna’s hearings were “fundamentally unfair.” As a result, McKenna won an injunction against the University allowing him to continue taking classes while his case proceeds.
Coleman and Ekstrand singled out the undergraduate conduct board process as particularly unfair. Students and faculty sit on conduct boards, which adjudicate more serious accusations of Community Standard violations and determine sanctions for students found responsible.
Students can appeal conduct board findings on procedural grounds to appellate panels, which usually consist of administrators. Ekstrand noted that problems in the student conduct process are concentrated in the conduct board process. The same is not true of Duke's appeals system, which is separate from OSC and has overturned some of the most egregious decisions, he said.
“I think the investigative reports tend to be incomplete,” Coleman said, referring to the documents about a case that are given to conduct boards before a hearing begins. “[OSC doesn’t] always interview all of the witnesses. They don’t subject the people they interview to probing interrogations.”
In addition, Coleman noted that he has seen other cases—besides the one profiled by The Chronicle last week—in which the University has been reluctant to include potentially relevant evidence in proceedings.
“I have asked the University to pursue additional evidence, in some cases after I have gone out and talked to people who have some expertise—that is, people within the University who should be consulted on these issues—and they have basically not been willing to do that,” he said.
Ekstrand brought up the unwillingness of OSC to hear from outside experts as another problem with the system.
“It is often very hard to get evidence presented at a hearing from anybody other than the accused. OSC panels do at least let the accused speak and do what they can do on their own,” he said. “But if a student needs to bring in an expert or fact witnesses, it’s a toss-up as to whether the panel will allow it. And that is rarely decided in advance. It’s always, ‘The panel will decide if they want to hear it at the hearing.'"
Ekstrand also noted that there is no mechanism in Duke’s process for students to submit excluded expert testimony. This would enable students to create a record that the appeals board could later review to evaluate the hearing panel's decision to exclude the testimony.
In court cases, recording evidence away from a jury so that its relevance can be reviewed on appeal is standard practice, Ekstrand explained.
“Some of the most powerful evidence has been the most likely to be excluded in these cases,” he said. “The decisions appear thesis-driven. They seem to further an interest in avoiding a record that’s difficult to find responsibility on, rather than finding the truth of the matter. Usually, the decision to exclude evidence is not explained, and I can see no other reason for excluding it.”
Coleman noted that dealing with the conduct boards themselves is “impossible.” He argued that a system in which witnesses often testify by video call or over the phone cannot properly establish their credibility.
He also took issue with the fact that the members of an undergraduate conduct board can restrict when and how students going before the board can ask questions of witnesses.
Ekstrand argued that the process frequently produces decisions not based on firm evidentiary ground.
“If you could spend a day reading the panels' written decisions explaining their finding of responsibility and suspension, I think you would get comfortable with the idea that only a handful of them are supported by compelling evidence––evidence that meets the 'clear and convincing' standard,” he said. “But the rest are just not there.”
Duke uses the "clear and convincing" standard to determine the outcomes of student conduct cases not involving sexual misconduct.
Ekstrand also took issue not only with the process itself, but with the way in which it is applied.
“Not only is Duke’s process not well designed to consistently produce reliable outcomes, but the administration of it by certain administrators exacerbates that problem,” he said. “So in other words, not only are the rules and procedural safeguards not really all that strong, but they are too often disregarded or undermined.”
‘Defend yourself at your peril’
Both Coleman and Ekstrand also discussed how outside counsel affects the student conduct process. They noted that it might be a good idea for students going through the process to hire a lawyer.
“If you’re talking about something that has the potential to ruin a person’s career or ruin their lives, as in sexual misconduct cases, then a student needs the best advice they can get,” Coleman said. "If my son was involved in a case like this, absolutely, the first thing I would advise him is to get a lawyer."
But Ekstrand noted that the most common advice Duke gives accused students is to accept responsibility without contesting the charges against them.
“The advice they get is ‘defend yourself at your peril’... You should never be punished for defending yourself against an accusation,” he said. “And if you follow that advice, what you’re doing is essentially giving up the best chance you have to avoid suspension and a permanent disciplinary record, which is to be found not responsible by a panel or win that issue on appeal.”
A student who was granted anonymity by The Chronicle due to the sensitive nature of his story said that he went through the student conduct process and was discouraged by OSC from seeking outside legal help.
“The advice I got from Student Conduct and [Assistant Dean of Students Leslie] Grinage and [OSC Director] Bryan was not to get a lawyer. They sort of made it sound like it would be easier on my part to not go through that process,” he said. “I think it would have been very helpful to get better advice and to try to pursue third-party counsel.”
Both Ekstrand and Coleman also said that some students have the resources and ability to hire outside counsel while others do not—which can make the student conduct process an unlevel playing field.
However, they added that it is unlikely that the University will see a spate of lawsuits targeting the student conduct process in the near future due to the burdens involved with litigation.
“Litigation is very costly,” Coleman said. “Litigation also exposes you to publicity, and some people just think that they go away quietly and hope that the thing goes away.”
‘We saw this 11, 12 years ago’
These are not new issues on campus. During the 2006-07 and 2007-08 academic years, in the wake of the lacrosse case, Duke Student Government—led by Elliott Wolf and then Paul Slattery, both Trinity ’08—pushed back against OSC, then known as Judicial Affairs. Wolf himself had a brush with the student conduct process after he ran a file-sharing server on campus.
“If you go back to the old [student conduct bulletin], back in the late 90s, they said, ‘We’re only going to adjudicate [an off-campus incident] if it’s a clear threat to the University community,’” Wolf said. “They changed that to say, ‘we can go after anything,’ and the ‘anything’ they decided to go after was underage drinking citations.”
The outcry began after a series of 2005 incidents in which Durham police illegally searched students at off-campus houses and cited them for alcohol violations. Evidence from those searches—which was not admissible in court—was then used in student conduct proceedings.
“Almost 100 students were cited. The citations were thrown out because they were the results of illegal searches. But Student Affairs continued adjudicating them,” Wolf said. “Larry [Moneta, vice president for student affairs] took the position that, ‘That’s all fine and good, there was a Fourth Amendment violation, but we still have information indicating these things happened and so we’re going to adjudicate.’ Well, the problem, as we interpreted it, was that the University suddenly provided the Durham Police Department with an extrajudicial means to punish Duke students.”
After the lacrosse case in 2006, Wolf and DSG became concerned that the Durham Police Department could use that extrajudicial option as a way to systematically target Duke students—who had not done anything that could be prosecuted in court—through Judicial Affairs.
Slattery and Wolf then led DSG in a detailed review of Judicial Affairs and released a report cataloguing changes in the Duke Community Standard over the years. They argued that these past alterations had reduced the rights of students going through the student conduct process.
The report pointed out that in the 1999-2000 academic year, students could request that their hearings before a conduct board be open to the public and could have witnesses testify, whether or not the conduct board deemed them relevant. Students could also object to up to three panel members without needing to give a reason.
Many of the student rights listed in the 1999-2000 Community Standard were eliminated from policy documents over the next few years. A section regarding students' rights listed in the 1999-2000 Community Standard was no longer present in the 2002-03 one.
More recently, DSG was preparing a report on the student conduct process last year, which heavily criticized the system and OSC. The report was ultimately not released and sophomore Kayla Thompson, former vice president for social culture, declined to provide The Chronicle with a draft copy of the report.
However, a presentation about the report during a DSG Senate meeting last year discussed an increase in enforcement of University policies by Duke since 2006, especially regarding social life.
“From 2006 to 2007, there were four reports that recommended strict and consistent enforcement of conduct outside of the classroom to curb the excessive consumption of alcohol,” the presentation noted. “The evidence suggests that since the reports, the disciplinary process changed to significantly increase enforcement of social life policies, centralize and embolden administrative authority and weaken the rights of students and the strength of opposing viewpoints.”
Senior John Guarco, former DSG Executive Vice President, said that he and other DSG members saw many of the same issues with the student conduct process that Wolf, Slattery, Coleman and Ekstrand identified. Guarco added that although OSC expressed interest in potential changes to the process that he proposed, the office routinely did not follow up on reform proposals while he was in DSG.
“[OSC] will respond enthusiastically, they’ll be nice and kind to you, they’ll listen to what you have to say,” he said. “Then, you follow up in an email after the actual meeting, and you don’t get a response. If you do, it’s very lukewarm, and it’s very clear in the language they use that they don’t intend on actually seeing what you want done materialize.”
Wolf noted that the Office of Student Conduct’s approach to DSG complaints was similar during his time on campus.
“We didn't see [OSC] winning on the merits of their arguments or their mastery of the details,” he wrote in an email. “They won behind closed doors by convincing people they appointed and working within a system they designed. And even then they still had to constantly move the goalposts.”
Wolf added that he was surprised the Duke community is still having the same discussions about problems in the student conduct process as when he was on campus.
“We saw this 11, 12 years ago. We documented it very thoroughly,” he said. “I think you’ve got to ask yourself, ‘Why are these people still here?’”
DSG’s review of Judicial Affairs a decade ago also included a document listing its proposed changes to the student conduct process to make it more fair.
The University created a task force, which included Coleman, to consider these proposed changes and examine the student conduct process in general. But it was shut down by Steve Nowicki, dean and vice provost for undergraduate education, because of legal concerns.
An email—marked as confidential from University Counsel Pamela Bernard sent to task force members in 2008 and obtained by The Chronicle—shows that the University was worried about how the changes would affect its legal position and how the changes would “legalize” the conduct process.
"If Duke were to adopt the students' position on important points in an effort to compromise, the result would be: 1. Undermining universities' decade-built position, uniformly accepted by courts as correct... 2. Duke would be seen as weak among its peers and out of step with the strong trend over the last decade to de-legalize student conduct processes," she wrote at the time.
Some of the changes proposed by DSG—such as informing students of the charges against them at the start of the conduct process—are in practice today.
Other changes, such as removing evidence from the process that was obtained illegally by police, allowing open hearings or requiring a finding of probable cause for a hearing before the disciplinary process starts, have not been adopted.
Coleman and Ekstrand identified several reforms which they believe need to be made to the student conduct process. The first is that students need to be told what evidence presented to the conduct board specifically supports the charges against them.
“Before there is a decision to charge a student, somebody needs to go through the record and decide there is probable cause and identify the facts upon which they make that determination, and not turn over this raw investigative report,” Coleman said. “Because what that does is it lets [conduct board members] pick through it—assuming that they read it, and I don’t know if they do—and they basically can pick out what they think is the relevant evidence.”
Coleman also argued that, especially in sexual misconduct cases, that it is important for students and faculty members participating in the student conduct process to have legal training. This is even more true for people on appeals panels, he said, since many of the issues which come before the these panels are procedural and technical in nature.
Ekstrand suggested that one simple change would be to select members of conduct panels in the same way that jury members are selected—randomly and from the whole community.
“Why not simply select students from the entire student body at random? It would not be difficult. You would have cases decided by a true cross section of 'the University community,’” he said. “And it would minimize Duke's recurring problem of not having enough panelists available. I suspect that, if Duke did that, the number of questionable responsibility findings—and suspensions—will go down.”
Coleman noted that changes to the student conduct process will likely have to start with changes to OSC itself, which he called “the focal point of the whole disciplinary system.”
He also acknowledged that if his suggestions are adopted the student conduct process will end up being more legalistic.
“I know this sounds like what I’m saying is that you need a process that is much more legal, much more adjudicatory, and much more adversarial than what we have now,” Coleman said. “But when you’re talking about serious charges that’s what you need. That’s how you get at the truth.”
‘My crazy idea’
Coleman made it clear that he has examined the conduct process and criticized it in order to help improve the University, not to hurt it.
“I am not trying to undermine the University,” he said. “The reason I get involved in these cases is because I want the University to, if there are flaws in its process, fix them so that the system is fair to all students.”
Ekstrand also expressed similar sentiments, noting that he is a Duke graduate and believes Duke and Duke students are “truly unique” and "deserve better."
Aside from the policy and procedural solutions which could be implemented to fix the process, Coleman argued that the only way to create real, lasting change is for members of the Duke community to become invested in the fairness of the process.
He said he believed that people need to speak out when they see unfair things happening in the Duke community.
“These are our students who are being affected by this, and so we have an obligation to them, I think,” Coleman said. “And if we’re in a position to see that something is unfair or may be unfair or is broken, we have an obligation to say something about it. That’s my crazy idea.”