'You're literally thrown in the deep end'
Repost of article published in The Duke Chronicle on May 10, 2017
Students describe problems with the student conduct process
By Claire Ballentine and Neelesh Moorthy
This is the third story in a multi-part series on the student conduct process. The first story, published two weeks ago, examined the experience of one student who went through the student conduct process and felt she was treated unfairly. In the second story, published last week, legal experts criticized the student conduct process. 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.
*Students’ names have been changed due to the sensitive nature of their stories.
Several students told The Chronicle that they have encountered problems with undergraduate conduct board proceedings similar to those described by legal experts.
The Chronicle spoke with four students who discussed problems with the Office of Student Conduct, including incomplete or inadequate investigations into their cases, difficulty introducing witnesses for their defense and a “guilty until proven innocent” mindset of the boards.
As with the previous article on OSC, The Chronicle gave Stephen Bryan, associate dean of students and director of OSC, an opportunity to respond to the allegations presented in this story. He declined to comment.
Donald Beskind, professor of law, has been serving as a faculty advisor for students going through the student conduct process since 1977. He said he has observed problems with almost all aspects of the process and that it has become increasingly harsh in recent years, with an “astonishingly high” number of convictions.
“They’ve systematically reduced the ability of the process to separate those who have done something wrong from those who have not,” he said.
Beskind agreed that students who face Duke’s disciplinary process are often assumed guilty, an attitude that impacts OSC investigations even before hearings begin.
The disciplinary process at the University begins with “Office of Student Conduct staff and/or designee(s)” gathering information about the alleged incident, according to the Duke Community Standard. This can include conducting interviews, reviewing related documents and requesting written statements from anyone involved with the incident in question.
“I’ve seen examples of really shoddy investigations that started out basically to prove somebody had done something wrong, basically ignoring any evidence that was contrary to what appeared to be the obvious goal of the investigation,” Beskind said. “Which was to write a report justifying the conviction.”
In October 2015, Kaitlyn Clark* was accused of cheating during a Psychology 101 midterm by two teaching assistants who said they saw her looking at another student’s paper before erasing and changing her answers.
However, Clark maintains that she was simply sitting in an awkward position while taking the test, due to the fact that she is left-handed and was forced to sit in a right-handed desk because all of the left-handed ones were taken.
An undergraduate conduct board found Clark responsible for cheating and suspended her for one semester with an additional two semesters of probation. She then appealed on the basis that the decision had “no plausible basis in evidence”—a grounds for appeal that has since been removed from the policy.
The appellate board—consisting of Lee Baker, former dean of academic affairs for Trinity College, and Steve Nowicki, dean and vice provost for undergraduate education, among others—overturned the decision and Clark received no sanctions.
Clark said that the appellate board noted that much information was left out of the investigation into her case—including inconsistencies in the reports of the TAs and that her responses to short answer questions were substantially different than those of the student whose answers she allegedly copied.
In addition, the appellate board mentioned that the original report left out the direction of the clock—which could have accounted for the way Clark was looking during the test—as well as that she had signed the Duke Community Standard, Clark explained.
“[The undergraduate conduct board] didn’t even look at my actual test, even though they said there were erasure marks,” Clark said.
Another student, Casey Jones*, also said that the investigation into her alleged misconduct was lacking. In Spring 2016, she was accused of cheating during a biology midterm by four TAs.
When Jones met with Leslie Grinage—who previously worked as assistant dean of students but has since left the University—Grinage showed her the evidence that the TAs had submitted, Jones said.
“It was a photo of the back of our heads,” Jones said. “There was no proof of me looking sideways.”
The photograph, obtained by The Chronicle, was taken from the back of the classroom and pictured students with their backs to the camera. None of the students appear to be leaning in a certain direction or looking at others’ papers.
The TAs had also taken a video in which Jones appeared to rapidly shake her head back and forth, which Jones said is due to a medical condition she has had since she was 14.
“When I had that interview with Leslie Grinage, she didn’t ask questions that were pertinent to the whole matter,” Jones said. “She would ask me what I did before and after what happened, and I was just like, ‘I don't know why this is relevant.’”
Beskind noted that he has seen many instances in which OSC compiles reports that are either biased or not thorough, leaving out evidence or not talking to important witnesses.
These biased reports are then submitted to the undergraduate conduct board, which he said is “extremely troubling.”
“It’s supposed to be up to the panel to decide if someone did something in violation of the standard, not the investigator,” Beskind said. “That’s not what investigators do, at least not in a fair system.”
Senior Kayla Morton, who allowed The Chronicle to use her real name, said she faced a similar experience with Grinage. Two years ago, she was accused of academic dishonesty in connection with a makeup exam, because she was sick for the in-class assessment. After receiving her graded test, she noticed misgraded questions and sent them back to be corrected. Morton was shocked to learn four days later that she had been referred to OSC.
She was accused of altering answers before returning the test back to the teaching assistant, an allegation Morton denies.
In fact, one of the reasons the professor submitted the case to OSC in the first place turned out to be false. The professor, in emails between him and Morton reviewed by The Chronicle, initially claimed there was a scanned copy of the original test to verify the cheating.
However, he soon admitted to “slightly mixing the evidence” and that no such scan existed.
Nonetheless, the case proceeded because the professor said Morton’s work on the page did not match the answers she selected. It was also unlikely the TA would incorrectly grade three questions on one exam.
Morton’s defense was that she had changed her answers to the problems in question several times during the exam, and with less-than-perfect erasing there might have been confusion. But confusion does not constitute cheating.
When she spoke to Grinage, however, Morton said she received nothing but hostility.
“As soon as I started crying, Grinage says, ‘I had decided you did this before you even walked into the room. I’m just trying to get you to tell me why you did this, and if you do, you won’t be suspended,’” Morton recounted.
Grinage did not respond to The Chronicle’s request for comment.
‘Trying to trap people’
All of the students interviewed agreed that the undergraduate conduct boards they faced presumed them guilty from the outset.
Clark called her UCB hearing “the absolute worst part” of her interaction with OSC, explaining that the panelists were more focused on determining if she was lying than listening to her story.
The panelists also noted their concern with Clark looking relaxed and unapologetic, she said.
Clark said that simply appearing unconcerned does not make one guilty, noting that she handles stress in an “awkward” way.
Courtney Davis* also faced a UCB hearing this semester after she was caught shoplifting from the Lobby Shop—which she said was attributable to factors like her mental health, economic disparity and troubles in her family life.
She said that her hearing began more than 30 minutes late because the panel had to wait on one of its members—who showed up with a box from Dunkin Donuts.
“It was very frustrating, and it all kind of felt like a joke,” she said.
During the hearing, the panel asked questions to reinforce that she was guilty and wanted to make it clear that she had betrayed Duke as an institution, Davis said. She noted that they asked how her actions impacted Duke and what resources on campus for mental health could have prevented the situation.
Davis was eventually suspended for a semester, with the panel explaining that her reaction did not align with the violation.
“I kind of interpreted that as ‘You did not feel bad enough for what you did,’” she said.
Beskind explained that he has observed this behavior from panelists while advising a number of students.
“Too often, the panels in my judgement have seen their role as being the prosecutor of the case, asking very leading questions and trying to trap people,” he said.
Morton agreed, saying her UCB hearing panel—which found her guilty—was irregular. Morton said the entire panel deliberated for a total of 11 minutes after she left the room. Every member then left the room except for the student leading the panel and a dean, who remained inside for 25 minutes. It was these two who gave her a two semester suspension, Morton said.
From Morton’s perspective, this indicated the panel had not truly discussed her case very much, and that the “dean was pulling the strings.”
She said that before her hearing, her faculty advisor implied that the panel would be more inclined to protect the University instead of students and discouraged her from going through with the hearings.
Beskind said that in many cases, it seemed to him that students on the panels do not understand their proper role—to listen to the evidence, ask clarifying questions and then to decide the case.
Davis noted she believes that the students involved with OSC are “self-selecting.”
“They’re the students who derive some kind of enjoyment from punishing other students,” she said.
Students also mentioned encountering problems when trying to get witnesses or experts to testify on their behalf.
Davis said that she wanted her psychologist to act as a witness in her case, in order to provide background on her mental health problems.
But when she informed Valerie Glassman—assistant dean of OSC—about her witness, Glassman replied that because Davis’ witness did not see the alleged incident taking place, the panel was not required to admit the witness.
Glassman directed The Chronicle’s request for comment to Bryan.
The Duke Community Standard says that accused students “may bring relevant material witnesses” to speak on their behalf. However, the panel has the authority to “determine the extent to which witnesses will be permitted, including relevancy of questioning and information presented.”
Beskind noted that he has encountered two kinds of problems involving witnesses in UCB hearings—students not being allowed to call in relevant witnesses and also students being allowed to call in witnesses without fair notice to the other side.
“In some cases, the rules were overly enforced, and in some cases, they are not enforced at all and testimony that should never have come in, came in,” he said.
Robert Ekstrand—a Durham lawyer who has worked on hundreds of disciplinary cases involving students at Duke—and James Coleman, John S. Bradway professor of the practice of law, previously told The Chronicle that they have encountered situations in which OSC is unwilling to hear from outside experts or witnesses. Ekstrand said that if a student needs to bring in a witness to testify, it is a “toss up” as to whether the panel will allow it.
Jones also wanted her doctor to testify on her behalf during her trial, she said. Although she had medical evidence, her lawyer told her that panels often do not consider medical evidence because they believe that people make it up.
Morton had a similar story. A core contention against her was that the TA was statistically unlikely to have misgraded her exam, but Morton identified several flaws with this claim.
For one, the professor emailed her the day before the hearing to note he had revised his assessment, which he testified to during the hearing. In his revision, it was more likely than before that the TA actually could have made such a mistake.
Furthermore, Morton—with the help of Ekstrand, her attorney—had consulted with a statistics professor from another University, but the panel refused to allow this expert’s testimony. The panel had heard enough from her Duke professor and did not need another expert opinion, Morton said.
In men's soccer player Ciaran McKenna’s lawsuit against the University, McKenna also argues that Duke violated his due process rights by failing to hear from a key witness, whose testimony could have affected the alleged victim’s credibility, he says. His lawsuit alleges that his undergraduate conduct board attempted to contact the teammate using an unknown conference call number rather than the number they used to originally contact him, so the teammate did not answer the phone at the time of the hearing.
Beskind explained that the underlying problem is that Duke’s rules are not consistently applied.
“The rules are subject to interpretation by the people who operate the system, and these interpretations often have to do more with desired outcomes, I’m afraid, than anything else,” he said.
When Davis arrived for her hearing, she said that a dean handed her paperwork to fill out, listing her rights and asking her if she wanted to waive them—including the right to have witnesses testify on her behalf.
“I had never even seen these before, and they were asking me if I wanted to waive these minutes before my trial, and I had never formally been given the procedure, and what rights a student was supposed to have with a trial,” she said.
Beskind noted that he has frequently seen OSC ask students to waive their rights, such as the right to have witnesses, the right to know five to seven days in advance who will be on the panel and the right to make an opening statement.
These requests are made mainly because of logistical challenges in planning the panels, he said.
“One of the problems in the system is that you’re operating a system that is going to be staffed in part by student hearing panel members, and students are here 28 weeks out of the year, which makes it hard to do it,” he said.
Clark said that her hearing took almost a month to schedule and that she did not receive much communication from OSC about it.
Jones also faced difficulties in scheduling her hearing. OSC initially offered her three different options for days in which the trial could take place, but Grinage noted that the office was having trouble finding students to sit on the panel because of the dates’ proximity to Spring Break.
She was offered two panels with four faculty or staff and one student as well as one panel with all faculty or staff, instead of the typical pattern of three students and two faculty or staff. Jones rejected these panel compositions because she thought it would create an unfavorable bias toward her.
Davis also noted that she faced logistical problems with the advisors for her case.
The Duke Community Standard notes that disciplinary advisors are available to assist students throughout the student conduct process. These include students and staff who have been trained in the disciplinary process.
Davis was given both a student advisor and faculty advisor. However, when she reached out to her faculty advisor, she received no reply. After informing Glassman about this, she received a new faculty advisor, but this one was not helpful, Davis said.
At the time, she was considering appealing her sanction, but her advisor did not give her much information about how appeals typically go, Davis said.
“She just said, ‘I can’t make a decision for you, this has to be your choice but I can answer any follow up questions,”’ Davis said.
She also told Glassman that she did not feel comfortable talking with her student advisor, as she already knew that person, but Glassman never assigned her another one.
Similarly, Jones was initially given an advisor who was out of town. When she informed Grinage of this, she was given a new advisor who she said did not know much about the student conduct process.
"I met with mine once, and she gave no help whatsoever,” Jones said.
The necessity of a lawyer
Clark, Jones, Davis and Morton all noted that hiring outside legal help is crucial in dealing with OSC.
Jones said that she was motivated to get a lawyer after determining that her advisor was inadequate to help her navigate the student conduct process.
“I was like, ‘I have no idea what to do with this’,” Jones said. “I’ve never dealt with anything like this before.”
Jones’ lawyer eventually worked with OSC to reach a compromise on her behalf—she would say that she cheated and would be put on probation for the rest of her time at Duke.
Morton hired Ekstrand upon the advice of a family friend, who also went through a student conduct process.
Davis—who was given a one semester suspension which will take place this summer—said that without her lawyer, she would have known nothing about how to approach her UCB hearing, including how to go about having a witness and writing an opening and closing statement.
She noted that no one ever told her what her rights in the hearing were until OSC asked her to waive some of them before the hearing.
“They just don't tell you things at all,” she said.
For Morton, her lawyer’s help was crucial to winning her appeal.
An appeals panel reversed her initial hearing panel’s decision and vacated her suspension, citing procedural errors—such as the initial panel not allowing her expert’s testimony—and insufficient evidence for the conviction.
The appeals panel made its decision without even talking to Morton, although Morton said she was available for a phone call during her DukeEngage trip in Jordan if needed. She said Ekstrand, who actually wrote the appeal for her, played a large role in her ultimately winning her case.
For example, Morton said her faculty advisor was generally ineffective with dealing with the process, and primarily only served to insist on the process’ fairness and provide emotional support.
One possible reason for her winning the appeal, Morton suggested, is that higher-level administrators tend to serve on appeals panels. These officials might be more concerned with litigation against the University, more so than students and faculty on the initial hearing panel.
“I don’t think I would have won that appeal if I hadn’t gotten a lawyer,” she said.
Clark initially did not hire legal help because she believed that she was completely innocent, she said. Although her advisor also did not think she needed one, she ultimately realized that she needed assistance for her appeal, she noted.
“If I knew that they assumed guilt I would’ve gotten a lawyer from minute one,” she said.
The legal help did not come cheap—Clark spent $2,440 for her lawyer and Jones said she spent approximately $1,500.
Jones said that she thinks most students hire a lawyer when facing the student conduct process, even though they are often advised against it.
She noted that she could not have navigated the process without her lawyer.
“You’re literally thrown in the deep end, and you have to figure out what to do in this process,” she said. “You have to find your own help, your own evidence. It’s all on you.”
Ekstrand explained that hiring a lawyer is particularly beneficial to students when navigating the appeals process.
"A student trying to win an appeal on their own in that system, without the benefit of experienced counsel, that is the long shot of long shots” he said. “There are years when I look at OSC's annual statistics and I think, 'Oh my, we've won all the successful appeals reported for the year.'"
Beskind noted that when students go before an undergraduate conduct board, they are usually convicted, but a significant number of these are overturned on appeal.
However, he has observed a pattern in which the appellate process changes when students’ appeals frequently succeed. For instance, the grounds available for appeal are modified.
“It’s been my general experience that when student conduct results are not to somebody’s liking the rules change so that that result can’t happen again,” he said.