Campus officials throughout the country are revising policies, procedures and training to those who handle reports of sexual misconduct, including sexual violence.
It all comes in response to efforts to comply with the Violence Against Women Act, the April 2011 “Dear Colleague Letter,” and Office for Civil Rights investigations. In light of these legislative influences, some campus leaders might consider mirroring the criminal justice or legal procedures. But there are several critical reasons why that’s not the best approach.
Policies differ from laws
Each institution has a responsibility to create and enforce behavioral expectations that protect the learning environment and the campus community. This includes academic dishonesty or disruptive behavior, as well as misconduct that also violates laws, such as weapons possession or sexual assault.
Policies address a student’s relationship to the institution, while laws address a citizen’s relationship to the state. Although students don’t give up their constitutional rights while attending college, they voluntarily agree to uphold their college’s conduct code. And the courts have upheld that colleges can and should set their own behavioral standards.
Plus, college policies can be written so they’re better understood by students, faculty and staff than most state laws.
Conduct hearings aren’t courtrooms
A conduct hearing should determine if a student violated a college policy and what consequences will best promote individual learning and restoration for any harm caused. That determination should be based on a reasonable review of available information related to the incident, including allowing the complaining party and the accused student to review and respond to that information.
All individuals present during the incident should participate in the process. Representation by an attorney or a parent diminishes not only the quality of information provided to the hearing body but also removes the opportunity for students to engage in education and reflection about the conduct.
Also, the “Dear Colleague Letter” made it clear the standard of proof in conduct hearings involving sexual misconduct is simply a “preponderance of the evidence” or “more likely than not.” Ensure everyone understands that although your process can determine if students are responsible, students won’t be found “guilty” or sent to jail, so students should use criminal and civil options if they want different outcomes.
And ensure your process gives students opportunities to:
- Be informed of policies they may have violated.
- Review available information that indicates this.
- Respond to that information.
You don’t need a panel of faculty, staff and students to hear from every witness or a trial like one on “Law and Order.” Instead, view the experience through the eyes of a college student, who might not want to discuss a sexually violent experience in front of faculty or students she might see in class. On the other hand, she might trust that process more than an administrator or investigative model.
Ensure your process fits your campus culture, upholds students’ procedural protections, and provides proper training and support.
Campus experts have value
It takes an entire campus to ensure compliance with Title IX and other legislative guidance. Rather than asking a lawyer or shared governance committee to draft policy, consider your campus experts. Because your institution needs to provide annual training to those involved in intake, investigation, adjudication and enforcement of policies, it makes sense to invest in and support them so they can develop policies and procedures. Then your attorney can have a more consultative role, resulting in policies that fit your campus culture and are supported by the employees who administer them.
Violations present learning opportunities
Student conduct processes should invite dialogue and engage students. Even a student accused of violence is still entitled to the student conduct process.
Perhaps the most difficult part of our job is balancing our care for individual students with the collective student body. Sometimes a college must initiate a complaint against a student because the community could be at risk, such as when you suspect a student has multiple sexual misconduct violations. However, that still doesn’t call for a “prosecution” but rather a dialogue about the available information and a response from the accused student.
Even with the influence of legislative and judicial compliance, if typical students don’t understand our conduct procedures or feel they need lawyers to present their cases, then it’s time to revisit our processes.