A campus Title IX coordinator recently made some interesting comments to Elizabeth Nolan Brown at the Dish about the problem of sexual assault on college campuses.
A lot of the national debate, such as it is, about what’s gone wrong in higher education and how to fix it, has centered on the question of whether colleges and universities should ever have judicial-style proceedings that involve accusations about serious crimes. Critics suggest that reports of sexual assault should go straight to the police and be resolved through the criminal justice system, that college administrations should be 100% uninvolved.
This is a silly argument as such, because the critics are starting from a misperception of (or sometimes a conscious, active distortion of) the overall context of campus judiciary proceedings. When reform advocates answer these critics in their own terms, the discussion sometimes tends to get trapped inside this misunderstanding. College policies need to be understood first and foremost in the context of college codes of conduct, which is what the Title IX coordinator points out at The Dish.
Both private and public universities admit students according to selective criteria and all of them reserve the right to revoke that admission to a matriculated student who violates their declared rules and procedures.
The most obvious or classic reason to expel or suspend a current student is poor academic performance. While almost no contemporary campuses will expel a student for a single semester of poor performance, a college or university could choose to adopt such a policy. An overly draconian (or lenient) policy on academic performance would likely bring heavy pressure for change from an accrediting agency, and a punitive approach would also very likely scare away prospective students. But you’re at least technically allowed to do it if you want.
Colleges and universities can also adopt very strict social policies if they like, and even strong civil libertarians and defenders of academic freedom tend to agree that a private institution is permitted to do so if it so chooses, though not to violate Constitutional rights or other statutory protections. So a strongly religious college, for example, can have a code of conduct that mandates expulsion or suspension for any consumption of alcohol, for any premarital sex, for smoking, for rejection of congregational doctrine, you name it. If a student matriculates there, they are accepting that code of conduct and the consequences of breaking it.
As the administrator quoted in The Dish points out, even secular institutions with no desire to regulate most private conduct by students in those respects routinely handle a wide variety of infractions of their own codes of conduct. They deal with plagiarism, fistfights, arrests for public drunkenness, vandalism of college property, drug dealing, theft, cheating, and so on.
One of the baseline principles in most colleges and universities is that a student who is a serious danger to the security and safety of fellow students, administrators and faculty or to the property of the institution and its community may be suspended or expelled. The most common second baseline is strictures against students who commit academic dishonesty such as plagiarism or cheating.
Academic dishonesty, for the most part, doesn’t involve criminal behavior, or even serious exposure to potential civil liability. And yet, campuses typically examine it using some kind of judicial proceeding. Higher education also has to deal with questions of conduct that might be criminal offenses in addition , and in those cases colleges and universities cannot afford to defer to and wait upon the criminal justice system. Because their concern in those instances is not with justice in that sense. It is with the safety, health and welfare of their current students, about maintaining conditions that allow those students to focus on their education while they are matriculated students. If you’re against judicial proceedings on sexual assault, are you against them on plagiarism? Ok–but surely then you are not against the notion that either of these infractions might be legitimately as violations of a code of conduct. You just believe that they should be handled differently.
If, for example, mobile devices and laptop within a dorm are being stolen regularly, that’s a threat to the welfare of the students in that dorm. If all the stolen devices are found in a dorm room of an enrolled student, the administration has to consider that student’s status whether or not they or the owners of the stolen devices have any interest in a criminal charge. If they deferred to the courts and took no action until that time, it could be months or years before the case was resolved–and in the meantime, the probable thief is still living in the dorms, where it is difficult or impossible to thoroughly monitor or supervise their actions. The college needs some way to decide what to do–and probably therefore some way to be sure that the student in question is very likely to be the person who stole the devices.
The debate should never be about whether colleges should make such decisions, or subordinate all their decisions to the criminal justice system.
I already pointed out that plagiarism and cheating couldn’t be dealt with if that were the case. There are many other situations that might fall into such a gap. You could, for example, have a student who persistently and deliberately commits extraordinary safety violations in laboratory courses. That’s likely not a criminal offense at all. The idea that a college should just stand by helplessly because there is no outside agency to consider the offense is crazy. So it needs a process, and that process has to include consideration of possible sanctions. If the student in question is a natural science major, then even if the intervention doesn’t involve something like suspension, it might involve compelling the student to change their major, which that student might likely see as a punishment.
How students see these kinds of actions is important, and is a big reason why most institutions today have some form of quasi-judicial process for dealing with some kinds of infractions of conduct codes. Not all of them: I suspect all colleges and universities have quietly suspended or expelled students in cases where they’d just as soon not talk about the infraction openly. Quasi-judicial processes on most campuses carry over historical traditions about honor codes and so on, that students should participate in judging their own and that students should be able to witness the consequences of infractions for exemplary reasons.
Higher education institutions could at their discretion rely on a purely executive decision: a faculty member could report cheating, a dean could then automatically expel. But most decision-making today in higher education is consultative and organizational hierarchies are relatively flat and decentralized, which work against that kind of action. If you’re going to have a consultative meeting between a dean and a faculty member about an accusation, why not throw in a couple more people, including the accused? The relative autonomy of tenure-track faculty, though fading in current institutions, could permit different faculty members to make accusations according to their own standards. The hearing is a chance to tie the decision to a consistent institutional policy or approach. Yet another reason is that most colleges and universities properly treat expulsion or suspension as serious penalties within their own context, and so seek procedures that are both substantively and performatively responsive to that sense of gravity. It’s not just that an expelled student is losing the value they’ve invested in their education. Even before all the current talk of “return on investment”, higher education was driven by a sense of mutual obligation between teachers and students, a belief that every generation was carrying forward important traditions.
A college or university can and should decide on standards that ensure that its students can get the education that they’re seeking. In the case of sexual assault, it can decide that any sexual behavior that could be judged to be predatory, aggressive or violating consent makes it impossible for other students to pursue their education in a safe, secure fashion. Particularly if the college or university in question believes, as most do, that at least some of the education they offer takes place outside the classroom, in the life of the community. In the pursuit of that safety, an institution could legitimately decide to decisively move students to other residences, change their course schedules, or suspend or expel the accused student. Or it could decide that it needs a thorough investigation of any such charges and a complicated, multilayered deliberative process. Or it could settle for a muddled, contradictory approach.
Under pressure from many activists, many colleges and universities are coming to the conclusion that they currently lack the expertise to assess such charges or to cope with their consequences, hence the changes unfolding at many institutions. If you question those changes, you have to come inside the frame of policies intended to deal with conduct violations, not stand outside and advocate relying on the criminal justice system as an alternative.
You can talk about what’s fair and unfair, efficient and inefficient, clear or unclear in how colleges and universities handle students who violate codes of conduct. What you can’t say is that those codes of conduct should somehow defer to criminal and civil proceedings, that colleges and universities should not have codes of conduct. They shouldn’t wait around for years to decide what to do about a student who poses a serious risk to others, or who has abused or disrupted the educational process. The only deference should be to the statutes and regulations (like Title IX) which directly address the obligations of institutions of higher learning.