Conduct Unbecoming

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.

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13 Responses to Conduct Unbecoming

  1. Justin says:

    “The debate should never be about whether colleges should make such decisions, or subordinate all their decisions to the criminal justice system.”

    “all” is the problem. Certainly universities should be able to enforce some kinds of “codes of conduct” through some kind of “court.” But overlap with the government’s justice system can be a problem. Particularly when that judicial system (rightly in my view) states that we are innocent until proven guilty. Your example of suspected laptop theft is a good case in point. I don’t think a university court should be able to label someone a thief and punish them for it by kicking them out without involving the government and proving it to the usual government standard. Where government courts can be used, they should be. That doesn’t mean university courts have no role, as you state plagiarism is rightly within their domain, but it should be a limited one. We generally don’t and should not allow private institutions complete free rein to refuse to provide services to people who don’t follow their codes. Universities shouldn’t be an exception to this general rule except when clear exceptions, such as a university’s interest in curbing plagiarism, warrant it.

  2. Timothy Burke says:

    But we do allow private institutions tremendous discretion to specify rules for service, actually. If I run a five-star restaurant, I can not only tell people what the dress code is and refuse service to those who don’t meet it, I can also decide to remove someone from my establishment if their conduct interferes with the atmosphere I’m striving for. So, for example, a patron who keeps getting up and making passes at female patrons at other tables. I think there’s no question that a manager or owner would have free rein to remove that patron from the premises, even if the remarks were not legally actionable harassment.

    The difference here lies largely in the purpose of the services offered, the character and culture of the provider, the cost and time frame of the services, etc. Institutions of higher learning regard themselves as providing more than a simple transactional service, and in substantial ways, our society agrees with that proposition. So it’s not quite as simple as booting an obnoxious customer out of the point of sale. Even within that frame, the establishment can’t refuse service if it’s discriminating against a class of people in doing so.

    But the notion that a university or college should have to wait upon the criminal justice system to fully dispose of a case before making any provisions whatsoever for safety and welfare of its students and employees strikes me as patently unworkable and unfair. It forces the institution for one to not know what it knows (and therefore to outright not know at all) in order to avoid enormous exposure to liability. It also forces the institution to be actively cruel and hostile to many of its students in ignoring or rejecting their legitimate concerns and suffering. What do you tell the people who are the hallmates of the accused thief while they wait a year for the case to progress? What do you tell the next person who gets hit by the student who regularly starts fist-fights at weekend parties? “Go ahead and charge him with assault, but we can’t do anything until he’s convicted? Or get a restraining order and then we’ll try to do something?”

    Courts have consistently ruled in civil cases as well as a few criminal ones that what a university administration should or could know about harm to its students, it MUST know, and if it knows it, it MUST do something. If you could know a student is suicidal–if there are visible signs, reports, information–you can’t just decide to ignore it. If you have reports that a student (or employee) has been harassing or sexually abusive, the same. “Doing something” is not just placing a call to the police or other authorities.

    Why do universities have in your view a legitimate interest in curbing plagiarism but not a legitimate interest in the safety and welfare of their students? Why can they legitimately act against cheating but must just let a serial sexual assaulter go about his business until he’s convicted by a court?

    I think there are valid discussions about what the best procedures are for “good enough” verification of conduct violations. But bracketing off everything that might be criminally actionable and just waiting for the justice system to resolve it is a serious abrogation of responsibility to students as well as a massive source of liability.

  3. mch says:

    I learned a great deal from this essay and endorse much in it. I am still concerned that a college disciplinary procedure, however well designed and executed, is not an adequate response to such a violent and serious crime as rape (or to the charges thereof). Having counseled both female students who were raped and once a male student who came to me claiming he’d been falsely accused (I have no idea where the truth lay — my role in counseling him did not go there); having watched a deeply troubled female student when I was in college make a false accusation of rape (a million years ago and a different world, but her charges initially were taken seriously, sympathetically, and involved the police), and more recently having counseled my son when a (troubled) female friend of his in college made a false accusation of rape…. I recognize that most rape accusations are NOT false (I have heard figures like 9 out of 10), and I recognize the college’s responsibility not just to the raped student but to other students, to remove a dangerous person from campus, or just someone whose mere presence is a continuing assault – all the arguments you make so well. But I still worry about that one in ten. The college has an obligation to him, too.

    Agreeing with your arguments as much as I do, although I demur a bit, I don’t know what to do in the short term. But I think in the longer term we need to encourage students to go to the police, the DA — yes, that’s what you do when you’ve been seriously assaulted. And rape is a very very serious assault. A few punches thrown at a party (yes, disciplinary committees have to worry about such) are not the same as a knife in the stomach — a student here was knifed a few years ago, and no one hesitated to bring in the police (well, there was no choice, once the ambulance sirens were whining).

    Rape is on a par with the knife in the stomach, not a punch in the face. Maybe young women need education in this fact as much as young men do.

    In other words, if we do not bring in larger social sanctions, we are in danger of minimizing the seriousness of rape. Once a woman has been raped, it is too late to say, “Let’s not make too much of this.” That does not help her, personally, in the long run, or other women in her wake. And not going to public authorities (or at least encouraging her to do so) is to say, in effect, “Let’s not make too much of this. Let’s not get those (too often) unsympathetic police involved. Let’s not submit you to the indignities of a rape kit (when the rape has been reported in a timely fashion). Let’s not ask you, and stand behind you and help you, as you grow into a woman who takes charge of her life.”

    At least in small college towns, where the college already works closely with local police, the college can help educate the police. The student will have a phalanx of deans and counsellors behind her. They can also be liaisons (or run interference) with parents who, in most cases, will be supportive and should be included.

    I think I am saying that I believe women are stronger than they, or their teachers, may realize. Or will be, if they’re treated with that assumption.

  4. Timothy Burke says:

    I’m completely in agreement that a good college system will encourage taking charges of rape and assault to the criminal justice system.

    While I worry that “due process” conceptually makes people think that a system for weighing evidence in campus processes is the same as weighing evidence in a criminal trial (and therefore has to be identical to the criminal system, right down to adversarial legal advisors), it’s clear that whatever system you have has to take the need for evidence seriously. You shouldn’t suspend a student just because his roommate says he stole a wallet or because a professor says he cheated. A good system should need more than that to go on, however it’s designed.

  5. 2016 says:

    I really enjoyed this entry, Professor Burke. We often do not see eye to eye on campus issues, but I think you are spot on in your analysis here.

    I disagree, on the other hand, with mch’s comments and wanted to respond as a student who was sexually assaulted and went through the disciplinary process at Swarthmore.

    It is true that rape is a serious crime that deserves to be brought to police, but mch seems to have forgotten that rape is only one form of sexual assault. Many assaults (and attempted rapes) leave no physical evidence, and therefore working with the police and district attorney is out of the question. Yes, these assaults can be reported, but without physical evidence (or witness testimony) most departments are unable to investigate and most DAs would not pursue a prosecution.

    These assaults can be just as traumatizing as rape, but by saying the criminal justice system is the only way to pursue a case, you are saying these assaults are not as serious. This is one of the many reasons reporting numbers are so low in cases of sexual violence and harassment.

  6. Timothy Burke says:

    Thanks. I think actually that this is a domain where activists looking for reform need to keep working on how to describe and narrate this point. It’s tricky to figure out how to say that there are more than one form of assault without incidentally feeding the ideology that there is “real rape” (usually imagined as “stranger rape”) and then there is something else. E.g., what’s the language that would let survivors and their advocates talk about the seriousness of assault across a range of manifestations and circumstances without using a hierarchy? Or if it is a hierarchy, how to not let that diminish or dismiss assault of other kinds.

  7. sibyledu says:

    I admit I have been in the camp of those who have divided offenses into criminal and community types, and argued that colleges should avoid evaluating the former and stick to the latter. But you are right: this is not an either/or question, but a both/and one. Plagiarism and harassment are offenses against the learning community. But so are theft and rape, even though they are also criminal offenses. The college should treat theft and rape as offenses against the community, and pursue them accordingly, but they should not allow that process to substitute for criminal proceedings.

  8. Justin says:

    I’ve come back to this late but anyway I’m not sure why your arguments about universities’ obligations to protect its students, if you believe them, shouldn’t also apply to the government’s obligation to protect its citizens. And yet, unless you are saying the standard of innocent until proven guilty is a suspect one even at a government level, then you do seem to be making a distinction. If the burden to protect for a university is so great that innocent until proven guilty can be thrown out then why not so for the government? You say I am arguing that universities must ignore knowing what they know. I am not. I am saying that most of the time they don’t know what they think they know and there must be a process for validating claims and where that process already exists, i.e. the criminal justice system, it should be used. Simply because stolen laptops were found in a student’s dorm does not ipso facto prove that the occupant of that dorm room stole them. Why reinvent the wheel? We have a system, no matter how imperfect to sort these things out and there is no reason to believe that a university system would be any better. Your restaurant cases are red-herrings. Are you saying then that a university could rightly enforce-dress codes, enforce thought codes, indeed enforce almost any code of conduct it wishes simply because it is a private institution? I don’t think so. There are rules and limits and those rules and limits should be discussed and debated just as we are doing now. Particularly when it comes to serious matters of rape, theft, sexual assault, etc, I’m not sure quickening the process of “justice” or “public safety” or lodging it within a university is either ethically or practically possible. The outcry to stop this outrages is understandable but finding the right means to do so isn’t easy.

  9. Timothy Burke says:

    Actually a university could do all those things. Which doesn’t mean that it should. A university could absolutely have a dress code, for example. As I noted, there are universities which very much make aspects of their student’s private lives into something the university governs. A university could have a thought code. In fact, all of them do already in some sense: they disallow plagiarism in the submission of work that has no independent commodity value. If I write a letter to a friend and I plagiarize, there would be no court remedy for that, because I haven’t really deprived the original author of expected monetary value. But a university controls your “thoughts” in this respect. It does in other ways, too: as a professor I control what counts as an acceptable answer to an essay question, for example. If a student says, “I am exercising my freedom of speech: I am going to argue that the best answer to an essay about the slave trade in West Africa is my homework assignment from Physics 1″, I can absolutely say, “I do not accept this assignment, you failed the class”. The US government can’t require you to say or think anything about the history of the slave trade and physics, in contrast.

    This is one of the classic confusions in American life: we assume that all associational and private life is governed by the same rights that we possess in our public and political lives. But literally no one really thinks that. If I join a rugby club but maintain that it is my right, because of the 1st Amendment, to wear the uniform of the opposing team, or to play by my own rules while on the field, and that the league or team cannot impede those rights, I’m really not understanding that important distinction.

    The classic way that our civil rights intrude into private spaces and associations is either via arguments about public accommodations or through the government’s obligation to secure my rights against individual trespass. Educational institutions are in many ways considered to be providing public accommodations and therefore cannot maintain discriminatory barriers to access or service. Educational institutions, like any private entity, can’t actively deprive students or workers of basic civil rights. So a college can tell you to leave–it doesn’t have to provide you service–as long as in telling you to leave it is not doing so in a discriminatory way. A university cannot deprive you of your liberty–say, jailing you. It can’t order you to pay civil damages to another student (It can bill you for direct damage you’ve done to its property, but it can’t compel you to pay that bill without using the government’s court system.) A university (or other private concern or individual) cannot execute you.

    That’s the basis for the distinction between government and service-providing institutions of any kind: what the government can do to you, under some conditions, is to modify the rights you would otherwise possess. The government, constrained by the Constitution and laws, can deprive you of your liberty. It can in many states deprive you your life. It can take your property. It can order you to comply with its lawful instructions, including instructing you not to speak (say, with a gag order during a judicial proceeding).

    Which is why there are specific provisions for due process in the US Constitution: because what a government can do to its citizens is so potentially momentous.

    Being suspended or expelled or disciplined by an institution of higher learning is potentially quite consequential. But it doesn’t match any of those other kinds of consequences. It is a good idea for educational institutions to take those consequences seriously enough that they create procedures that reflect the gravity of those outcomes. It’s a good idea first because that’s fair and just. But also because if you don’t, you’ll be creating an exposure to civil suits that do NOT use “beyond a reasonable doubt” as their standard of proof.

    But it is not required that they do so. A university could specify that there is a Dean of Unpleasant Decisions who is authorized to use their executive powers to expel at will for anything they feel violated their stated Code of Conduct. It would be in my view a bad idea to matriculate at such an institution, both because of what it says about their values and because of the probability of losing whatever value I have invested in my education there. I think it would be an equally bad idea to matriculate at an institution that told me that my only remedy if another student did something to me or my property was to report him/her to the police, that the university was powerless to do anything about it until there was a court judgment. I know I wouldn’t want to work for an institution that told me as a faculty member that if a student punched me in the mouth during class, I’d just have to call the cops and wait for the judicial system to finish its process–that in the meantime, I’d have to keep teaching that student for the rest of the semester as if nothing had happened. But this is essentially what you propose: that the university itself have no systems whatsoever for maintaining discipline and adherence to its conduct code, and defer entirely to the courts.

  10. Justin says:

    Extremes are usually counter-productive. I didn’t say universities should have “no systems for maintaining discipline whatsoever” I said we should discuss/debate what those limits should be and acknowledge that there should be limits. Universities do not live in a vacuum, they live within countries that have systems to deal with people who punch you in the face. I think you discount the effectiveness of those systems, even with all their flaws and put too much faith in potential university systems that could somehow deal with them better. I am interested more in finding out how both systems could practically and ethically work together and where the boundaries between them should lie. There is no need to pull either of our arguments to extremes. Finding a workable system that deals effectively with misconduct while preserving an agreed upon minimum of civil liberties which should not be checked at any doorstep should be the goal. Luckily as I write this from Malawi, after having lived and worked in Africa and Asia for well over a decade I am less susceptible to classical American confusions than you might think.

  11. Timothy Burke says:

    The point is:

    a) universities can’t just defer to the criminal justice system
    b) they shouldn’t use systems which directly mimic it, either: those systems are too burdensome, complex and are intended to protect the rights of citizens from their governments
    c) which leaves unspecified: what would be the best system?

    I think the current direction is promising, which is to construct a separate system for dealing with sexual assault because it’s poorly suited to systems that can deal adequately with petty theft, minor altercations and plagiarism.

  12. Justin says:

    Fair enough. You are optimistic about the new systems. I am less so. Time will tell. The “best” as always is a negotiated and contested thing.

  13. mch says:

    I want to respond to 2016 (and would have sooner, but I have actually taken a few days off to visit my brother in Maine — please, all, take time and pleasure in those that love you and you love them — even though my brother and I had a few difficult moments — it wasn’t all sweetness and light). You are so right. There are many degrees, types of assault, and sometimes the “lesser” (in the strictly legal senses) can be more damaging than the “major” (again, in strictly legal senses). Let’s just say, life is complicated.

    I am truly coming from a place that has confidence in you (without even knowing you or your story). Take your stand on top of the place where someone thought he had you down. Look beyond. And as for the strictly legal, work to put it on your side. The larger legal. Look beyond Swarthmore (which is Swarthmore’s job to help you do). That’s what I am saying. I trust you.

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