'We were innocent by their own terms, and then they decided to throw out their terms'

School Discipline

Repost of article published in The Duke Chronicle on May 22, 2017

Members of one fraternity detail their experience with the Office of Student Conduct

By Claire Ballentine

This is the fourth story in a multi-part series on the student conduct process. The first story, published three 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 two weeks ago, two legal experts criticized the student conduct process, and the third story, which was published last week, detailed additional students’ experiences with the Office of Student Conduct. If you have had experiences with the OSC 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.

When an overly-intoxicated girl showed up on the steps of the Alpha Epsilon Pi fraternity house during Orientation Week in 2015, the brothers’ first response was to help her.

They never expected it would lead to a five-month long battle with the Office of Student Conduct about whether or not they had violated the University’s alcohol policy.

“We were innocent by their own terms, and then they decided to throw out their terms,” said Todd Miller*, Pratt ‘16 and a senior member of AEPi at the time.

Although the fraternity eventually was unanimously found not responsible by an undergraduate conduct board, the members interviewed by The Chronicle noted that the hurdles they faced illustrate the problems with the student conduct process, and that the ordeal raises questions about the effectiveness of the University’s alcohol amnesty policy.

The incident

On August 22, 2015, members of AEPi held a party at 913 Dacian Avenue, where several brothers lived together, including Miller and Garrett Johnson*, Pratt ‘16 and president of AEPi at the time.

The event was open only to the brothers and their friends. First-year students were strictly prohibited, as were people who did not have friends in the fraternity. Around 11 p.m., a group of about six students arrived with two of them supporting a girl who could not stand on her own due to intoxication, Johnson said.

The brothers debated whether or not they should allow the girl on their property but eventually decided to let her rest on their porch, although none of the fraternity members knew these students.

Johnson—who was manning the bar inside—came out onto the porch when he heard about the situation.

“We only brought her onto our porch because we decided she needed help and that turning her away would be immoral,” Johnson said.

Members of AEPi gave the girl water and took care of her, Miller explained. One member of the fraternity who worked as an emergency medical technician was called outside to check on the girl.

Meanwhile, the girl’s friends were more interested in going to the party inside, but the brothers explicitly denied them entry, Johnson noted.

During the next 20 minutes, the girl’s condition worsened, and she began to vomit on herself, Miller said. Then, the brothers realized they needed to call Duke Emergency Medical Services.

Worried about getting in trouble for having someone at their house who had been drinking underage, they initially considered taking the girl back to East Campus—they assumed she was a first-year, although they found out later she was actually a sophomore—and calling EMS from there, Miller explained.

But during their deliberations, the girl became unresponsive and the off-duty EMT advised them to call EMS from the house.

Durham EMS and the Duke University Police Department soon arrived, and the brothers shut down the party, telling everyone to leave, Johnson explained. At this point, he said he realized that some of the girl’s friends had snuck inside to get alcohol.

The authorities asked to speak with the girl’s friends, and these students were later cited for drinking on campus. But the brothers did not receive any citations, Johnson said.

“They thanked us,” Johnson said. “They told us we saved her life.”

Senior Jacob Weiss, current president of AEPi, said he was there that night manning the door and applauded how Johnson and Miller reacted, noting that they handled the situation “incredibly well.”

The student conduct process begins

About two weeks later, Johnson received an email from Valerie Glassman—assistant dean of the Office of Student Conduct—regarding the incident.

Johnson said OSC found out about it because the intoxicated girl’s friends had been cited by the Durham Police Department. When OSC called the friends in to talk about the incident, they mentioned that they had been drinking at various places the night of the incident, including the AEPi house, Johnson said that Glassman told him.

In the email, Glassman requested to meet with Johnson because she believed that AEPi had violated the University’s alcohol policy, specifically the “underage possession/consumption (group)” clause.

According to the Duke Community Standard, “students under 21 years of age are not permitted to purchase, possess or consume alcoholic beverages. Being under the influence of any amount of alcohol while underage is considered a violation of this provision. Groups are considered in violation of this provision if they facilitate the acquisition of alcohol by anyone under the age of 21.”

However, the University also has an amnesty clause, stating that formal disciplinary action for a violation of the alcohol policy will not be taken against students for whom medical attention is sought or students who seek medical attention for themselves or others, “provided that the student/group has not violated other University policies.”

Johnson and Miller noted that they thought their situation fell under the amnesty clause, but Glassman disagreed.

A week after the initial meeting, Glassman wrote in an administrative resolution email obtained by The Chronicle that she “determined by a clear and convincing standard that the fraternity is responsible” for violating the alcohol policy.

Most matters processed formally through the Office of Student Conduct are resolved through administrative hearings. Students can reject the outcome of this hearing and have their case heard by an undergraduate conduct board, an option that Glassman informed Johnson and Miller about in her email.

The sanctions imposed by OSC included prohibiting the fraternity from registering a DevilsGate tent for the next three home games and requiring the executive leadership of the fraternity to meet with the Wellness Center about how to responsibly host events off-campus.

Glassman’s finding was not because of the intoxicated girl for whom they called EMS, but because Glassman believed the girl’s friends—who were underage—obtained alcohol from the party, therefore violating the alcohol policy, Johnson explained.

He noted that Glassman treated these two incidents as separated.

“The basic argument for why we didn’t have amnesty was that we didn’t serve the girl, but we allegedly served her friends who went into the house,” Miller said. “Because of that it was two separate incidents under the alcohol policy.”

Groups such as fraternities or selective living groups can receive amnesty if the group calls EMS for an individual at one of its events via the University’s current alcohol policy, wrote Stephen Bryan, associate dean of students and director of the Office of Student Conduct, in an email.

But junior Kayla Thompson, former DSG vice president for social culture, explained that the current amnesty policy is often not applied to groups hosting parties because these groups are simultaneously violating a different policy—distributing alcohol to underage students.

However, Johnson told Glassman that the fraternity was not serving underage students. As he was manning the bar, he only served people that he knew were over the age of 21, he said. He noted that the fraternity also did not give the girl’s friends alcohol, but that they stole it while members of the fraternity were taking care of the intoxicated girl on their porch.

Miller and Johnson said Glassman seemed to consider them guilty before their administrative hearing meeting even began.

“She was much more interested in playing prosecutor,” Miller said.

Robert Ekstrand, a Durham lawyer who has worked on hundreds of disciplinary cases involving students at Duke and other institutions, told The Chronicle that in his experience, OSC officials are eager to extract admissions of guilt from students who deny responsibility, which they often do through “bullying.”

“The bullying seems designed to make students believe that they are making a costly mistake by refusing to admit responsibility,” he said. “They think, ‘The dean is mad at me or doesn’t like me, I just need to do what they’re telling me to do, regardless of the facts.’”

Glassman declined to speak with The Chronicle about any of the allegations in this article, again deferring to Bryan.

Sue Wasiolek, associate vice president for student affairs and dean of students, said that she trusts the student conduct process.

“It's not a perfect process. There will be mistakes made, there will be errors made,” she said. “My hope and trust is that the appellate process will then kick in and it will work, and if I didn't trust the process, I couldn't work with it.”

The UCB hearing

Although the sanctions imposed on AEPi by OSC were not particularly severe, Miller noted, the fraternity decided to reject this administrative resolution and request an undergraduate conduct board to hear their case.

“There was no executive judgement on how to actually enforce these policies,” he said. “It was like [OSC was] trying to find technicalities to hang us on.”

Johnson said they rejected the administrative resolution for two reasons—they truly believed they had done the right thing and they were worried that this incident could be used against them if the fraternity ever had another interaction with OSC.

During the UCB hearing, Miller and Johnson represented the fraternity and answered questions from the board.

Miller shared with the board that the fraternity had already met with the Wellness Center staff to discuss the incident. He also noted that he had heard from other fraternities that the Wellness Center was using this incident and AEPi’s response to it as an example of how fraternities should act when faced with overly-intoxicated students at their events.

Although he was not involved in the OSC proceedings, Weiss said that he became a certified wellness advocate for the fraternity around the same time and that the Wellness Center also used AEPi as a positive example during his training.

David Mallen, assistant director of the Wellness Center, wrote in an email to The Chronicle that the Center facilitates a risk management program for groups such as fraternities and selective living groups to help them make a plan for mitigating risk factors at their events both on and off campus. Some groups go through the program voluntarily while others are referred there because of recent incidents.

He noted that he does not cite specific cases by name but does use details from incidents to illustrate realistic concerns that often occur at events.

“Students may have a closer knowledge to some of these situations due to relationships with the various chapters, so while I try to keep speak about them in general terms, students can sometimes make the connections,” Mallen wrote.

Eventually, the UCB panel voted 5-0 that AEPi was not responsible for violating the alcohol policy.

Miller said this is significant because UCB hearings rarely overturn administrative resolutions.

Donald Beskind—professor of law who has been serving as a faculty advisor for students going through the student conduct process since 1977—told The Chronicle that the in his experience, students are usually found responsible by undergraduate conduct boards, although many of these decisions are overturned when appealed.

Miller noted that throughout their entire interaction with OSC, Glassman was “combative” and assumed them guilty from the beginning. Several other students who have gone through the student conduct process also told The Chronicle they felt OSC assumed them guilty.

“[Glassman] was very on the side of ‘you did something wrong and I’m going to find it,’” Miller said.

Wasiolek noted that she trusts the work OSC administrators are doing.

“They didn't select this as a career in order to make life miserable for students who are accused of doing something wrong,” Wasiolek said. “They view their roles as educators and as really trying to give the student an opportunity to hold a mirror up and to sort of say, ‘How did things go?’”

Miller and Johnson initially wanted to speak with Stephen Bryan, associate dean of students and director of OSC, about how they had been treated by Glassman. But she did not send them their hearing report with the resolution until December 11 during finals week, even though their hearing had taken place in late October.

“What are you gonna do, stay on campus another week to meet with Stephen Bryan?” Miller said.

Bryan did not respond to questions the The Chronicle sent him about OSC’s process for conducting investigations, staffing conduct panels, ensuring students have the right to present relevant evidence during their hearings and ensuring that students feel the process is fair to them.

The next incident

This was not the last time AEPi dealt with OSC. In February 2016, OSC brought charges of hazing against the fraternity.

Glassman was again assigned to their case, which Miller said was because “she handles all the Greek cases.”

When Johnson learned that AEPi would once again have to work with Glassman, he sent an email to Bryan requesting that one of the other deans besides Glassman work with them to ensure an impartial process.

“Given the history, I think it would be more appropriate if the assistant dean handling this case had not previously found a verdict against my organization that was overturned by a 5-0 vote by the UCB, especially given the fact that there are two other officers who are more than qualified to handle this case,” Johnson wrote.

He noted that OSC then assigned a different dean to work with them and that in the next several instances when AEPi interacted with OSC, they were assigned someone else besides Glassman to handle the case.

“It makes me suspicious about how badly they think they messed this up that they would stop using [Glassman],” Miller said.

In the email response to Johnson’s concern, Bryan noted that he would substitute for Glassman.

“I appreciate your concern and want you to trust the University’s disciplinary process to fairly consider matters that proceed through the system,” Bryan wrote.

But Miller and Johnson noted that they felt OSC had bended its policies to try to convict them.

“They want absolute discretion,” Miller said. “They're built so they’re able to decide every policy and every step, so if you get off for whatever reason, they’ll be able to find you responsible in the future.”

Beskind told The Chronicle that he has observed OSC change its policies to make it easier to convict students—a sentiment echoed by Ekstrand who called it “one-move chess.”

“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,” Beskind said, explaining that the University also does not consistently follow its rules for the student conduct process.

Miller said that the relationship OSC has with student groups is “completely adversarial.”

“I think it's interesting because we are not pure people, and we have dealt with them so frequently for worse,” he said. “Even when you do something 100 percent right, they’ll bend their policies to try to hang you with them.”

The alcohol policy

Another main concern of Miller and Johnson was the alcohol policy in general, which they said currently discourages students from wanting to seek help for people in trouble.

Although the point of Duke’s amnesty policy is to prevent students from hesitating when faced with a student who is overly-intoxicated, Miller said there were several times when they hesitated that night because of their fear of getting in trouble with OSC.

“There are policies told to you from O-Week on that if you see someone in trouble, do something, but there’s a very different set of actions taken by student conduct,” he said. “When this actually happens, it’s ‘we’re not going to actually believe you and impose sanctions.’”

In recent years, the University has been limiting the scope and reach of its alcohol amnesty policy, said Ekstrand, which defeats its purpose.

The fact that students can still be charged for any policy violation other than alcohol—such as drugs—if they or someone they know is EMSed also deters them from calling for help, he noted.

“It's plainly obvious that [the alcohol amnesty policy] is not doing what amnesty is supposed to do, which is to ensure that a person in peril receives emergency services as soon as possible, rather than delayed or not at all because the putative caller must first resolve the dilemma of exposing himself to prosecution by OSC if he makes that call,” Ekstrand said.

Regarding alcohol violations, Ekstrand said that criminal sanctions imposed by the local police are harsh enough without additional prosecution by OSC. In the situation with AEPi, he said that “no reasonable person who has a genuine interest in public safety and health” would seek to punish the fraternity members for calling for help.

“If you are less forgiving to Duke students than the Durham police are, you really ought to reconsider your position,” he said.

Elliott Wolf, Trinity '08 and former president of Duke Student Government, noted that the alcohol amnesty policy predated his time at Duke but that he does not recall Greek organizations ever having been sanctioned for something the University was only aware about because they called EMS.

“That never happened, that never entered their consciousness,” he said. “Greek organizations were sanctioned for a lot of other things but never that.”

However, Wolf noted that it would not surprise him if the University had started to crack down on alcohol consumption by inflicting minor sanctions like this, which he referred to as “death by a thousand cuts.”

Mallen noted that when he works with groups at the Wellness Center to develop a safety plan for their events, they are often reluctant to write down any potential risks in a formal document because they worry this could be used against them in a future student conduct hearing.

“I think that speaks to an issue of trust that needs to develop between the student groups, DuWell and Student Conduct,” Mallen wrote.

Miller and Johnson said that in their initial meeting with her, Glassman faulted them for hesitating to call EMS immediately without realizing that OSC’s policies were the reason for their fear—which Johnson referred to as “an amazing lack of self-awareness.”

“They don't understand that they’re the ones building this scenario,” Miller said.

Potential reforms

In recent years, various students have suggested reforms to the alcohol policy, the most recent being a DSG initiative led by Thompson and junior Jackson Dellinger, former senator for Durham and regional affairs, to explicitly extend amnesty to groups hosting parties.

Thompson noted that she and Dellinger interviewed many different social living groups on campus and found that a large number of people did not feel safe at parties. These students felt like if they were left alone without their friends at the party, the social group hosting the event would not call EMS for them if needed.

Many groups were worried about getting in trouble for having EMS called to their party, she explained.

“In an ideal world, we would hope that the group would prioritize safety over the disciplinary status of the group, but I think a lot of times in the heat of the moment, that wasn’t going on,” Thompson said.

When she and Dellinger proposed their idea for an explicit policy change to DSG and administrators, the response was “overwhelmingly positive,” she said.

However, one concern was that groups might abuse the amnesty policy, for instance by having a crazy party and then calling EMS to rid themselves of any policy violation. But Thompson noted that there are still policies in place to ensure social groups are held accountable.

The proposed policy alteration was presented to both Moneta and Bryan, who both thought it was a good idea. The Office of Student Conduct Student Advisory Group reviews potential policy changes during the year, and these are ultimately approved or not by Moneta, Bryan explained.

The change will be implemented in the near future, although DSG and administrators are still working on the wording, Thompson explained.

“Student Conduct with this policy change is really trying to be transparent,” she said. “I hope that with this policy change, it shows a little bit of the efforts student conduct is going to to look out for the safety of students.”