The rules of justice are different when the court's on campus
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In such proceedings, it is usually not proof "beyond a reasonable doubt," as in a criminal court, that is required, but rather, a "clear and convincing" case against the accused.Skip to next paragraph
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As a result, groups like FIRE argue, schools admit evidence any TV viewer would easily recognize as inadmissible in court. J. W. Carney, a Boston defense attorney who frequently represents undergraduates in campus proceedings, says it's not uncommon for third-level hearsay to be used to convict a student. In addition, says Mr. Carney, hearing boards are often made up of "immature students ... the overwhelming majority of [whom] want to play judge, convict the accused, and impose a serious sentence."
Ben Wetmore, a junior at American University, in Washington, D.C., had a crash course in loaded juries during finals this year. Mr. Wetmore had brought a video camera to a Tipper Gore speech on campus in April, hoping to post a recording on his website. Not long into the talk, three plainclothes campus police officers tapped him on the shoulder and escorted him out. They confiscated his tape and later filed charges of entry without permission, theft, and disorderly conduct.
At the hearing in early May, Wetmore found that his "jury" included the hearing officer, the hearing officer's law clerk, and a fellow student who happened to be a former opponent of his in student government. "The whole thing was a monkey trial," he says.
Lack of due process on campus is heightened when the case touches highly sensitive subjects like gender, race, or sex, says Mr. Silverglate, who represented Harvard students in 1969 during antiwar protests. Silverglate says schools tend to define offenses in broad, politically acceptable terms. Calling an advocate of abortion rights a "baby killer" can be grounds for harassment charges; consensual sex, if linked to alcohol, can be treated as sexual misconduct.
But for most college administrators, campus courts and school codes are different from criminal law and rightly so. "There are circumstances in a college environment that really demand we look at these issues differently from criminal courts," says Richard Stegman, dean of students at Roger Williams University in Bristol, R.I.
The most troubling "circumstance," according to Harvard's Coalition Against Sexual Violence, is that surrounding the victims of sexual misconduct, who typically have few options: Prosecutors are unlikely to take on such cases, and mediation is generally unworkable.
Sarah Levit-Shore, the coalition's leader, says Harvard's new policy boils down to neglect: Schools should beef up their investigative role and train more administrators who specialize in prevention of sexual assault. "Giving up ... is not good enough," she says.
Many administrators also like to emphasize that schools ought to be in the business of education, not punitive justice. Civil-rights advocates complain that schools often don't allow accused students to bring attorneys to a hearing. But Mr. Stegman and others insist that when legal jargon and assumptions about the criminal system seep into campus hearings, the effect is to create clear winners and losers.
Such arguments outrage Thor Halvorssen at FIRE, who says the system has already produced many losers. Hearsay evidence admitted in a campus hearing, he says, can often be subpoenaed in a criminal court to grave effect. "Entire lives and careers have been ruined as a result."
Steinbach, like Stegman, thinks schools should continue to respond to cases of all kinds from mundane cheating to serious criminal charges. "You can't turn your back on it," he says. But he also recognizes some excesses in the system though perhaps not to the extent FIRE would like. Applauding Harvard's new policy, he says, "Allowing every case to go to a hearing is patently unfair."