Chapter 3

 

Due Process of Law

 

 

          Since the great campus turmoils of the 1960s, though the trend also has other roots in our litigious society, universities have been very careful, not to say fearful, in exercising their authority over students.  Expulsion is in law the only punishment the university has at its command, since fines or deprivations of privileges have no meaning unless the student chooses to stay enrolled and accept them.  If he refuses to accept the authority of the university in a disciplinary matter, the university cannot put him in a pillory or send a bailiff to collect a fine; all it can do is expel him. 

 

                   Technically, it can "do" something less.  It can suspend the student's registration for a period of time, but this is only a form of expulsion, a temporary expulsion.  It can refuse to grant a degree, but this is no more a punishment than if the student had failed his courses; it is a mere announcement (to whoever asks) that this person has not met the university's standards for a degree.  If Princeton refuses to grant a degree to a person convicted of cheating, that person is no more "punished" than the other 220 million Americans who fail to hold a Princeton degree.  It is as true of a person who has all his degrees from Harvard as it is for the Princeton student convicted by the Honor Committee.  It is punishment only in that the deprived person had at one time had expected better.

 

                   The university can also print on the transcript of the student's record the fact that he was convicted of academic dishonesty, but this is no punishment either; it is only the an­nouncement of a truth.  One might even ask whether the university is entitled to omit mention of such things when forwarding under official seal a transcript of what purports to be the record of that student's accomplishment while enrolled.  Thus the only real punishment, finally, is expulsion, and the test of the university's authority is there­fore the freedom it feels when a question of expulsion arises.

 

                   The 1954 edition of the general Bulletin of the University of Rochester contained the following paragraph:

 

                   "The continuance of each student upon the rolls of the University, the receipt by him of academic grades, his graduation, or the conferring of any degrees or the granting of any certificate, shall be strictly subject to the discretionary powers of the University.  The University expressly reserves the right, and the student expressly concedes to the University the right, to require the withdrawal of any student at any time for any reason deemed sufficient to it, and no reason for requiring such withdrawal need be given."

 

                   The corresponding paragraph in the 1987 edition reads,

 

                   "The University retains the right to determine the student's status within the University.  The University has discretionary powers to maintain a student's enrollment, to grant academic grades, to authorize graduation, or to confer any degrees or grant any certificates.  Each student concedes to the University the right to require the student's withdrawal at any time for any valid reasons, including failure to pay the term bill."


 

                   Though the two versions seek to say the same thing, and though the 1954 Trustees would have denied that they wanted the power to require withdrawal for some invalid reason, the difference in tone represents a genuine difference in attitude.  One can be quite certain that the 1987 clause was composed with the full participation of the law firm of Nixon, Hargrave, Devans and Doyle, who have had in the intervening years many occasions to defend the University in Federal and State courts.  Professors whose appointments were not renewed have sued the University, alleging arbitrary or prejudiced judgments, and students who were being disciplined have asked for injunctions against University actions, even against the University's beginning a disciplinary proceeding in their case.

 

                   Such lawsuits tend mostly to fail, but their probability of success has risen in recent years, especially in cases of employment and tenure because of civil rights legislation that didn't exist in 1954.  If a student could prove that his disciplinary case was affected in any part because he was Black, Hispanic, disabled, Lutheran, or female, for example, he would surely win something in court.

 

                   Nor is the danger of lawsuits the only factor in the changed attitude of the University concerning its authority.  The climate of opinion has changed, and professors themselves are more egalitarian and anti-authoritarian than they used to be, not to mention less bigoted.  In 1930 a Jew could not become a professor in a respectable old-line American University.  This was well-known, though publicly deplored by some men of good-will, but nobody, neither Jew nor Gentile, would ever have imagined taking a university to court in such a matter.  The courts would have said that the private business of the Old Siwash  English Depart­ment was none of their affair, and the professors would have agreed, whatever they thought about the hiring of Jews.  Today it is not only the Congress and the courts that forbid such bigotry, but the faculties and the public; in fact, barriers against Jews were falling long before the passage of the civil rights legislation of the 1960s, with Orientals, Blacks, Women and other distinguished groups not far behind.

 

                   Any university that could with impunity maintain a quota on admission of Jews to its classes, and a zero quota as to professors, could naturally feel immune to criticism on the exercise of its disciplin­ary authority over students.  But that was 1930; today's administrations lean over backwards in adherence to "equal opportunity."  They maintain extensive files detailing the events associated with every ap­pointment, every non-promotion, every admission, every degree granted or not granted, anxious to be able to prove both to the courts (in case of need) and to their own constituencies that they have been not only within the law but fair.  More than fair:  As one administrator has put it, we must "go beyond equal opportunity" and take an active role in redressing some of the imbalances in the society around us, by taking special care to favor those genders and races most recently called to our attention under the law.

                  

                    As this attitude meets with general approval among today's faculties, it is not surprising that faculty members are also chary of offending students as a class, a sort of 'disadvantaged class,' as it were.  One of the polemical essays of the 1960s student rebellion was entitled "The Student as Nigger."  That was a fair representation of how the student activists saw themselves vis-a-vis their elders; and it was a point of view shared by a good number of those elders during the strikes and sit-ins of that time.  Much new rhetoric therefore entered the regulations concerning campus behavior, from clauses about due process in hearings to provision for student membership in "faculty" committees.  Today, apart from the revised handbooks of faculty gover­nance and manifestos concerning "pa­rtnership in learning" between (undergraduate!) student and teacher, the evidence of grade inflation alone argues the increased reluc­tance of professors to sit in judgment of students.  Judgment on any level, let alone by arbitrary process.

 

                   Hence the anxiety about "due process."  It is not only fear of injunctions emanating from Federal District Court, it is the distrust of all authority, even our own as teachers, the appreciation of the fallibility of all men, the sympathy for the downtrodden, the entire complex of generosity and uncer­tainty by which today's professor is so easily distinguished from the self-confident aristocrat pictured (say) by Bronzino or Thacke­ray, ­that induces today's university to over-elaborate the safeguards it writes into its disciplinary regulations.

 

                   There are those to whom the phrase "over-elaborate safeguards" is an oxymoron:  We should do everything possible, they will say, to make our proce­dures fair, to protect the innocent --- hang the time and expense!  Well, within reason.  There are serious disadvantages to complex and lengthy procedures, and the innocent can be harmed by too much procedure as much as by too little.  In fact, if protection of the innocent student mistakenly brought before the court were the only purpose of procedure, abolition of the court would do the job.  But there are other innocents to consider: the ones who are not before the honesty court, the ones who never see the procedure because they are never dishonest, but who would be --- who are --- injured indirectly by the devalu­ation of their grades and degrees that results from every undiscovered case of dishonesty among their comrades.

 

                   The procedure I consider sufficient is described in Appendix 1, where I put forth a model constitution which is in fact the one I have been operating by for several years.  Here I shall only discuss some things to be avoided, things that are, alas, sometimes considered necessary in a fair system of student justice.

 

 

(1)  The trial should not attempt to imitate the adversary system of the American criminal courts.

 

                   There should be, in particular, no "prose­cution" (cf. (3) below), though obviously there will be a charge of some sort known to the student, who should have access to all the information he needs concerning the information against him in case he wishes to prepare a rebuttal.  There should be no lawyers, or people acting as lawyers, with cross-examination and the like, though an accused student might take some comfort from having a friend or advisor present with him, or even a member of his family, and this person should be permitted to speak if he likes.  The more the hearing is conducted like a committee meeting, with everyone permitted to ask questions or make statements, and with the kind of regard for good order that is common in faculty committees, the better the case will be understood when the time comes for the court to make its judgment.

 

                   The safeguards of the American criminal system, such as rules concerning admissible evidence, self incrimination, a unanimous jury, a judge who leaves the determination of fact to others, the order of precedence of prosecution, defense, summary, etc., require a profes­sional cadre of specially trained lawyers and jurists to operate, and the typical criminal trial takes perhaps a hundred times as long as a uni­versity can afford to give, in professors' time, to a case of academic dishonesty.  We have, moreover, no systematic body of precedent to consult, no experienced appeals courts to enforce uniformity (in fact, no contact whatever with other jurisdictions), no (or very little) subpoena power to compel testimony or production of evi­dence, and laughably little in the way of police or detective skill --- or time ---by which we can marshal all the evidence we would like to have.

 

                   Therefore we must make up our minds in advance that we will have to be satisfied with a process that does not compare in either prosecutory power or defense safeguards with the public courts.  Those courts will, as will be seen below, uphold the university's right to conduct hearings without such elaboration, too, so long as the accused is given a fair chance to state his case and bring up any witnesses or other evidence he likes, and so long as the university's court itself is not prejudiced, and behaves itself in accordance with standing rules known, published and agreed to by students and faculty.  We will also have to make up our minds to the fact that there will be the occasional student who, having been found guilty and punished, will appeal to the President of the University or to the courts, saying he was denied due process because his trial did not look like the ones he has seen in the movies.  Let us not take that kind of thing too hard.  That student would appeal even if his trial had been conducted by Charles Evans Hughes, with Perry Mason for the defense.

 

                   Every university has its lawyers downtown somewhere, of course, and in writing regulations concerning matters (like tenure or discipline) that might bring it to civil court, it naturally takes coun­sel before committing itself to a rewrite of what already seems legally acceptable.  Lawyers are conservative and do not wish to take chances, and they also tend not to count costs.  Nor is it their business to compute educational values when they choose between one university procedure and another.  Their only concern is to protect the university from lawsuits, and their ever-present fear is the "worst-case scenario."

                  

                   The result of any university's taking counsel will therefore very likely be an addition to the protocol, and not the simplification I recommend.  My advice to presidents and trustees is to take counsel with a grain of salt, keeping in mind what professors, who are to operate the system, are really able to do with fairness and expedition, and keeping in mind that professors are not drawing their salaries to operate courts, but to teach and study and advise.  A complicated system has enormous hidden costs in time and morale, and these costs are typically not visible to the lawyers downtown.  The remote pos­sibility of a successful lawsuit should be assigned an 'expected value' in the sense of statistical probability times monetary loss, and this figure should be balanced against the daily cost of the over-elaboration of the system needed to guarantee against that lawsuit.  In other words, 'self-insurance' in these matters is a bargain, and the benefit is not just to the university endowment but to the whole educational enterprise.

 

                   Finally, what is the probability of a successful lawsuit?  It is, as it should be, about the same as the probability of an egregiously  unfair university proceeding.  Two recent cases at Princeton may provide some answer.  (Citations and newspaper references for Clayton and Napolitano, as well as for other legal actions mentioned below, are found in the Biblio­graphy.  The legal decisions themselves make fascinating reading, not only for their bearing on points of law, but for the portrait they give of the Princeton --- and other colleges' --- disciplinary proceedings.)

 

                   In February of 1982 Gabrielle Napolitano, a senior due to graduate that spring, was found guilty of plagiarism in a term paper submitted for a course in Spanish literature.  Her penalty was to have her diploma held up for a year, and a notice sent to the law school to which she had been admitted for the following fall.  The Committee on Discipline that heard her case consisted of two deans, four professors, and five students.  Her appeal to the Presi­dent of Princeton was denied.

 

                   Ms. Napolitano then brought suit in a New Jersey court for libel and damages, contending denial of due process.  In a preliminary hearing the judge, William A. Dreier, expressed the opinion that Princeton had overreacted to Ms.Napolitano's offense.  This triggered a motion from Prince­ton's lawyers to have him disqualify himself from the case.  He denied the motion, heard testimony, and ordered Princeton to re-hear the case from the beginning and report back to him by June 1.  Prince­ton convened a second Disciplinary Committee, this time with four deans, two professors and five students, listened to another five hours of testimony and argument, and reaffirmed the original decision, returning the case to Judge Dreier.

 

                   The judge ended by upholding the University.  In his decision he again deplored the severity of Princeton's penalty, which was to cost Ms. Napolitano a lost year at least, and perhaps her career, and he suggested alternatives.  Just the same, he said, he would not graft his views onto the university's disciplinary procedures so long as the standards of good faith and fair dealing were met.  "The proper role of a court," he wrote in his decision, "is to permit private organizations to govern their own affairs, unless the court's intrusion is warranted by conduct so egregious as to con­stitute a breach of the parties' agree­ment."  In other words, since Ms. Napolitano had agreed to the Princeton regula­tions in joining the University, and Princeton had applied its system in good faith, it was not for the courts to say it was a bad system or a mistaken verdict even if the judge thought so.  (Judge Dreier was later upheld on appeal as well.)

 

                   The second case against Princeton was brought in Federal District Court by Robert Clayton, a 1982 Princeton graduate, who  complained of a 1979 decision against him in a cheating case brought under the Princeton Honor Code.  Here it was the totally student-operated Honor Committee that had tried Mr. Clayton, and it was a fellow student who had reported him as having cheated in the unsuper­vised examination.  His penalty was a year's suspension.  Clayton sued for $500,000, saying he had been denied due process in that the student "defense counsel" assigned to him in the proceeding had not defended him in a sufficiently partisan manner, in other words, that the Princeton trial procedures did not afford him certain rights accorded defendants in our criminal and civil courts outside the University.

 

                   Judge Harold A. Ackerman, who heard the case without a jury, ruled that the uni­versity procedures did not have to imitate those of State and Federal courts:  "The role of the defense adviser was carried out as it was generally understood on the Prince­ton campus and in the Honor Constitu­tion.  The fact that their conception of the adviser's role differs from the normal role of defense counsel in a court of law does not mean that Princeton's conception is infirm in any way."

 

                   Mr. Clayton offered other arguments.  Judge Ackerman's decision mentioned that while Clayton had not been "formally advised of his rights under the Princeton Honor Consti­tution," he had still had plenty of opportunity to know what Princeton expected of him, as was evidenced by his having signed the honor pledge before enrolling.  The judge also heard testimony on the subject of Clayton's complaint that the student court was biased and under pressure from the faculty to bring in a conviction.  On this point he apparently did consider the court competent in principle to interfere, but he found no inter­ference called for, since as a matter of fact the Honor Committee had not been proved biased.  He also found that the University was under no obligation to make, or, having made, retain, a complete recording of the disciplinary hearing, either on paper or electronically, to assist Mr. Clayton in the preparation of his appeals.  In response to Clayton's claim that he had only been accorded 16 hours' notice of his hearing, while the Princeton code specified at least 24, the judge wrote,  "Princeton's justified interest in autonomy is too great for this court to reduce the question of whe­ther Clayton was accorded fundamental fairness to an application of a mathematical formula."

 

                   All in all, Judge Ackerman did not go so far as to say that a University's proceedings are automatically and completely outside the scope of judicial review, and he did reaffirm the principle laid down by the U.S. Supreme Court in the case of Board of Curators of the Univer­sity of Missouri v Horowitz (1978), that a stigma such as a conviction in a dishonesty case can constitute a "deprivation" of liberty or property; but he denied, point for point, the contention that failure to observe the punctilia of "due process" as observed in the public courts con­stituted such deprivation "without due process of law."

 

                   "Simply stated," wrote Judge Ackerman, " I believe Robert Clayton got a fair shake... Princeton has accorded Mr. Clayton funda­mental fairness in convicting him of cheating, and that is all the law requires."  

 

                   It is hard to see, in reading of these two cases, that the difference between the Honor Code under which Clayton was convicted by an all-student court, and the college regulations under which Gabrielle Napolitano had been convicted by a student-faculty-administration court, made any difference in the judgment of the public courts.  That Clayton had signed an honor pledge was cited as evidence that he knew the rules, but Ms. Napolitano had signed a pledge too, on the paper she handed in to her Spanish teacher.  Even without formal written pledges, and formal "notification of rights" a la Miranda decision, the standard of fairness and non-violation of the agreement between student and college should be easy to meet in any reasonable college. 

 

                   Indeed, lest it be thought that Universities always win their cases when a student claims to have been disciplined unfairly, mention should be made of the case of students Christopher Baldwin and John H. Sutter, against Dartmouth College, which was decided in January of 1989 in their favor by Judge Bruce Mohl of the New Hampshire State Superior Court.  This was not an academic dishonesty case, but a case where these students among others were involved in a scuffle with a professor, an incident that was the culmination of a long political battle between the University and these students, who were writers for The Dartmouth Review, an off-campus newspaper critical of the Dartmouth administration and some of its faculty.

 

                   The disciplinary panel convened to hear the University's case against the students was found by Judge Mohl to have included a certain Professor LaValley, who was proved to have been prejudiced against the members of The Dartmouth Review, in that he had charac­terized them (in writing) as a menace and worse well before the hearing date.  Judge Mohl reiterated earlier decisions saying that a private University need not (unless it wished) mimic the procedures of the public courts -- granting the "right" to have a trained lawyer for the defense, or to cross-examine witnesses, were explicitly mentioned as unnecessary -- but also reiterated earlier decisions stating that the University could be held "to a fundamental standard of fairness," and that having a prejudiced member of a hearing panel violated this contract between the college and the students.  That is, Baldwin and Sutter did not get the "fair shake" Judge Ackerman mentioned in the Ackerman case.  (The Dartmouth affair, however, was not yet ended as of the time of this writing, since Judge Mohl only granted temporary relief, pending Dart­mouth's rehearing the case with a presumably unprejudiced panel.  Other issues, left unresolved so far, may be brought up again if the next hearing reaffirms Dartmouth's original action.)

 

 

(2) It is unnecessary to include students in the disciplinary procedures that concern academic dishonesty.

 

                   At the University of Rochester, which has had more than one system in the years 1952-1988, students have never been involved, and only once were there significant student voices raised asking for participation.  That was in 1964, when the student government thought an "honor code" should be instituted to replace the faculty committee that served as a court, and that the court to judge violations should be operated entirely by students.  There took place at Rochester a student referendum on this proposed reform, and it failed of a majority.  Articles in the student newspaper, and student testimony before interested faculty committees at the time, indicated that the principal objection of the majority, who did not want the "honor system," was that it did not believe students would in fact report observed violations during exami­nations, and that therefore there would be more cheating than before, leaving honest students' work subject to unfair competition.  In general, it was students of science and engineering, who saw them­selves as the ones most easily injured in a competitive grading system, who were most against trusting the administration of an honesty system to other students.

 

                   Of course there may be some educational or propaganda value in having students participate in the board that judges these offenses, especially in small colleges where a few student voices may go far in influencing the others.  It is worth mention that a student-operated honesty court is legal, too:  Judge Ackerman, in the Clayton case, wrote, in fact, "It is also not this court's role to judge the propriety of the system Princeton chooses to employ to police cheating in its student body.  Entrusting members of the student body to investigate and adjudicate the alleged malefactions of their fellow students is no sin.  In the absence of egregious behavior on the part of the entrusted body, Princeton's action can be viewed commendably as a vote of confidence in the maturity of the student body." 

 

                   Just the same, my experience with a population of about 5000 under­graduates subject to the juris­diction of the Rochester board has been that it is very hard to get any students to pay any attention to the problem of academic dishonesty.  Each student activity, from the Student Senate to the student radio station and newspaper, has its own interested group, to which the rest of the student body pays little attention.  Letters I have written to the student newspaper about the problem of academic dishonesty among undergraduates have received little notice.  It might be that if the Board on Academic Honesty contained some student members, they would go out and to some degree instruct their class­mates, but I doubt it.  The students who actually appear before our Board are with rare exceptions simply not the sort who consort with the kind of student who would be a member of the Board.  The lesson of academic probity that might be carried back to the student body by those students active in judging violations thereof would be a sermon to the already convinced.

 

                   Except for this dubious value, there is no reason to have students on an honesty court.  In particular, it is no part of "due process" that students must be put in judgment of students, any more than it is required that professors, or lawyers, do the job.  Students do not understand the problem any better than professors do; they are no more judicious, intelligent, sympathetic, hard-boiled, experienced, or energetic.  Students brought before the honesty court I have served, even those convicted and appealing our decision to the Provost, have never complained of the competence of a faculty group, or viewed it as lacking some important quality that could be found in a "jury of their peers."  (In this, honesty courts differ from other sorts of disciplinary groups, the kind that judge fraternity house rowdiness or campus political disruptions.)

 

                   And there are positive disadvantages, mainly having to do with logistics.  If a speedy trial is a desideratum, the main practical headache of the administrator of the court is to find a time and place for the hearing which does not interfere with the schedules of the members.  Each addition to the size of the court makes this schedul­ing more difficult, and students have schedules of four or five courses where professors have two or three.  If hearings were rare this would not be so important, but the Rochester Board has averaged more than thirty hearings per year (actually thirty-three students per year, heard separately, concerning an average of about twenty-five incidents, many of which were cases of possible collusion of some sort) in 1985-1988.  In addition, the investigation of each case requires some preliminary informal questioning of the professor or other potential witnesses, and sometimes the gather­ing of information from an office of academic advising, or dormitory.  This is not work that can be assigned a student, so that to this degree a student member of the Board would not pull his weight.  Finally, most honesty courts keep their proceedings confi­dential, something that much more difficult with student participa­tion.

 

                   On the other hand, the participation of an academic admini­strator, such as an associate dean, especially as Chairman, can be very useful logistically, as he often has easy access to secretarial assistance and conference room reservations, and college files that ordinary pro­fessors would have to waste time getting permission to use.  This person should of course be one with a professorial appoint­ment, not a financial or "student-life" administrator, if the authority of the court is to carry weight with the faculty.  Such authority is a necessity, or the faculty will simply not submit cases to that court, whatever the handbook says.

 

 

(3)  The  professor (or anyone else) who discovers the offense should not be a 'prosecutor' in the case.

 

                   There should not be a 'prosecutor' at all.  The adversary model, which universities must avoid, requires a prosecution and a defense, entraining much else that should be avoided.  In criminal courts the prosecution is conducted by professionals, and not by the victim of the crime.  In a university, where no such professionals exist, there is the tendency to ask someone to prove guilt, and by default that person is the nearest thing to a victim, i.e. the professor.  

 

                   But professors are reluctant to get into a prosecutory role, and the practical result of requiring professors to behave that way is that fewer cases of dishonesty will be reported than otherwise.  The rule at the University of Rochester (see Appendix 1) is that the person observing an apparent case of academic dishonesty should --- once he knows by a brief conference with the apparent perpetrator that it is not a clear and simple misapprehension --- report the incident to the Chairman of the Board on Academic Honesty even though he is not entirely persuaded of the guilt of the student he is reporting.

 

                   It is for the Board to determine guilt. The burden of proving it is also on the Board, in that it must conduct what investiga­tion is needed, call witnesses, hear the defense of the student.  A 'prosecutor' must be persuaded of the guilt in advance of the trial, on the basis of more investigation than the mere allegations of a victim, and this is too much to ask of a professor, as it would be too much to ask of a burglary victim.  Our experience again and again has been that professors have reported cases to us because the rules demanded it, though they themselves, when questioned by us, were fairly uncertain about a lot of details we ultimately established in our own later pro­ceeding.  Had the question of guilt or innocence, and penalty, been entirely up to them, they have said to us, they would have dropped the matter as soon as the student came up with a plausible denial, or a show of contrition.

 

                   In some cases the professor discovers two papers (literary criticisms, done outside of class, say) to be substantially identical.  Either one was copied from another, or both were copied from a common source.  He has no idea which; whom should he 'prosecute'?  It is possible that one of the two students is entirely innocent, the victim of an academic burglary, but our rules require the professor to report both students to us, and in due course tell us what he knows.  If the rules required that professor to come into our courtroom with a case to prove, we might never hear of it.

 

                   One consequence of our manner of proceeding is that students brought before us are not necessarily even suspected of wrongdoing.  Their names are on our calendar, with a Case #, but a professor or fellow student observing their entering and leaving our hearing room during one of our meetings has no reason to deduce that they are the ones being 'tried.'

 

                   As with so many other procedural features of the public courts, the presence of a prosecutor and the concomitant right to a lawyer for the defense are explicitly recognized by the courts to be unnecessary in a college disciplinary case.  In the 1984 case of Mary M. v Clark, the New York State Appellate Division court wrote, "We concur with the policy considerations enumerated in cases dealing with student discipline which recognizes that the student's welfare is best served by a nonadversarial setting which emphasizes the educational functions of disciplinary proceedings."  And that a student disciplinary code may forbid the presence of lawyers in the college hearing room was affirmed in the 1984 case of Jaska v University of Michigan.

 

                   Lawyers ---or any representative at all for the defense --- may be forbidden by the college rules without constituting deprivation of due process if the proceedings are not complex and the University does not make use of lawyers or specialized prosecutors.  Judge Feikens in the Jaska case noted that the court that tried Jaska had not been ap­pointed in accor­dance with the University's own regu­lations, in that the two student members who were supposed to be appointed by the student government were, because it was summer, appointed by the dean; but he said this did not rise to the level of a 'due process' violation.  This, even though he noted explicitly that the 14th Amendment is a valid subject of debate in a case where a State agency of any sort is accused of depriving someone of "liberty"  --- and that deprivation of liberty was an issue here.  A tran­script of the disciplinary hearing is not needed either.

 

          "The due process clause requires that plaintiff be given adequate notice of the charges against him, and a meaningful opportunity to be heard..."  And that is enough.

 

                   One caution, however.  In the Napolitano case at Princeton the judge did initially void the University's decision and send it back for a rehearing before he would himself hear the case on its merits.  His grounds were that Ms. Napolitano had possibly been denied the right to adequate counsel, and to cross-examine her accusers.  Therefore he would grant no summary judgment either way.  After the rehearing of her case at Princeton there were no further difficulties made with the Princeton procedures, and she lost her claim both before Judge Dreier and on appeal.  This may not make it settled law that cross-examina­tion is a fundamental right, especially when there is no "accuser" apart from (say) the plain testimony of a plagiarized document and its original, and it certainly does not imply that an adversarial procedure should govern; but it does remind us that in all fairness a student should have every oppor­tunity to question the evidence against him, and to question in the presence of his judges, if he wishes, every witness whose testimony is heard by them.

 

 

(4)  It is not necessary to decide every case 'guilty' or 'not guilty.'

 

                   As Chairman of the Board on Academic Honesty I have been the first recipient of every complaint from a professor.  The rules give me the option of not calling a hearing, without which there can be no determination of guilt or recommendation (to the Dean) of penalty.             About one case in every ten of my experience has been one where I have felt a moral certainty that the student was guilty, but have not had the evidence before me, nor any reasonable way of getting any without extraordinary labor.  In such cases I call the student to my office, or write him to the same effect, explaining that there appears to be insufficient evidence to warrant a hearing, and that I am therefore filing the complaint with the archives of the Board as an unproved allegation.  If a further complaint against that student comes up in the future, this one too may then be investigated further at that time, but for the moment, and so long as the Board never hears of that student again, the case is ended.

 

                   I also explain that, in accordance with our rules, the student may demand a hearing to clear the record.  That is his right, and if after the hearing we do not find guilt we will so record it, permanently closing the case; but we would of course be driven to investigate the case, in preparation for a hearing, more thoroughly than I already had when writing my letter.  Of the five or six such cases that have come my way, none of the students has pressed for a hearing.  There are two possible reasons.  First, that the student is innocent but does not want the burden of a trial to prove it; such a student is not worried about his name being on our books because he does not expect to be reported a second time by mistake, after all.  Second, that the student is guilty and is glad to get off this easy.

 

                   There were those who, when this procedure was first proposed at Rochester (in 1965, when the previous constitution was under extensive revision), cried "double jeopardy," and piously instructed us all that an accumulation of suspicions does not sum to a proof of guilt.  The Committee on Academic Policy of College of Arts and Sciences refused to approve the new constitution on this ground, among others.  This was another case of ignorant devotion to an imaginary standard of due process, and a preview of faculty pusillanimity in the face of the student disturbances of the late sixties.

 

                   Due process in the criminal justice system under English or American traditions of law does not in fact require every announced suspicion to be followed by a verdict of "guilty" or "not guilty."  Police keep records of criminal alle­gations without bringing them all to trial, not even going as far (as we do at the University of Rochester) as to permit the suspect to demand a trial.  Police keep records of arrests, and everyone knows that such records may persuade the police to investigate subse­quent allegations the more seriously the longer the arrest record is, without that arrest record serving as "evidence" in any trial that does take place.  Only people with invincible distrust of police protection imagine that such practices convert American police into the equivalent of the Gestapo.

                  

                   An important segment of faculty opinion did not, in 1965, admire anything at all about police, and preferred to think of crime as a disease of society (of which they were apparently not a part), having little to do with the sins of individuals, especially young indi­viduals, especially students and partners in learning.  As it turned out, the new constitution of the Board on Academic Honesty was es­tablished by a brief decree of the Provost, without inclusion of the dicta that had gener­ated all the principled opposition, but since any organization needs policy in addition to constitution, the policy of partially quashing unproved and unheard accusations remained.

         

                   In my own experience, no person with an "open," i.e. unad­judicated complaint against him has ever appeared a second time in our files, though we have had a couple of cases of proved second offenders, and one case of a second "not guilty" verdict.  It does not seem, therefore, that there is any practical difference between filing a com­plaint without a hearing and making a judgment of not guilty.  But there is: I can see two differences.

                  

                   First, for students who are in fact guilty it is morally more salu­brious to have an open file than to have the university gratuitously announce the falsehood that he is not guilty.  Students guilty of academic dis­honesty have gone through life too much undetected in such things already, without our adding examples further proving to him how easy it is to get away with it. 

 

                   Second, there are professors who, far from being gentle and uncertain of their authority, are unrestrained in their condemnation of the dishonesty they are reporting to us, and would fail the student out of hand (and perhaps thrash him as well) if punishment were up to them alone.  I have seen two such cases, both accusations of plagiar­ism against ignorant freshman students who hadn't the least idea of the difference between learning from a book and quoting from it, and who had (it appeared to me) no intention to deceive the professor about the origin of their ideas or words in the paper in question.  These students needed instruction, and the kind of admonition I could give informally (telling them that their work was a technical plagiarism and that they had to learn how to convert it into research in the future) was kinder than a thunderous warning from the Dean.

 

                   These two students, I believe, deserved to fail the assign­ment in question, and maybe the whole course, but that was up to the pro­fessor.  Under our procedure I was able to placate the professor by telling him he was entitled to fail the student if that student deserved failure for non-performance, but not as a punishment for having been dishonest.  I did not have to tell the professor that the student was innocent and he a fool (neither was entirely true), but I also did not have to tell the student, via a tedious hearing, a letter from the Dean, and a criminal record, that he should look to it in the future.

 

                   There is one sort of case where one wishes this procedure could have been applied, but circumstances forbid it; that is where one student copies from another in an examination room or, for that matter, in an out-of-class assignment.  The two papers are presented to us, we investigate, and the one who did the copying confesses, but steadfastly maintains that the other student was not in collusion.  And the other student says he had no idea he was being copied from.  We have to hold a hearing, and the second student is necessarily in jeopardy and must be heard, and we usually end by having to declare that second student not guilty, even though we find it hard to believe his story.  However, apart from the embarrassment of having our Board seen by that guilty student as having been gulled, all the purposes of the 'not heard' file have been served.  He does have an arrest record after all, and (if guilty) will have been warned.  Only once has a second such occurrence involving the same student being copied from come before me, and by golly he was declared not guilty a second time.  Well, maybe he wasn't guilty, at that.

 

 

(5)  It is not unjust to consider the student's record when judging a case.

 

                   In the public courts the police and prosecutor know all they can find out about a suspect before they bring him in for indict­ment.  They know his arrest record, where he works, who his friends are, what he said before being read his Miranda warning, and all sorts of other things that may be turn out to be excluded from testimony when it comes to a jury trial.  The jury, which decides guilt on a very narrow question, is carefully shielded from information which common law or statute deems irrelevant, incompetent, or in some way prejudicial, and this means that many of the facts that convince the police that the defendant must be guilty must never be known to the jury.

 

                   The rules for accomplishing all this are endless, by a layman's standards, and can only be observed effectively when trained attorneys and judges with enormous financial resources (time being money, after all) are charged with their operation.  As was mentioned above, it is not merely expensive or difficult for a university to imitate such pro­cedures, it is plain impossible.

 

                   Just the same, there is a substantial sentiment among pro­fessors on this one particular aspect of "due process":  that the court that decides whether a student is guilty of academic dishonesty should be as carefully shielded from all "police file" aspects of the student's history as is a jury in the public courts.  The existence of a 'not heard' accusation in a student's file is only one example of the kind of thing the due process enthusiasts would want us to be sure to ignore.  Other things might be whether the student was failing the course in question, what his academic record was in general, whether he lived in a fraternity house notorious for deviant behavior, and how he reacted when con­fronted by his professor.

 

                   It is not possible to assure ignorance of all such things, because a university is a small place, in which the court is bound to know people who know the student under suspicion, indeed where members of the court almost always are friends of the professor who has made the accusation.  Also, the court cannot behave like a jury if it has no professional prosecutors and attorneys in conflict, but must take an active part itself in the investigation of the case before trial and in the questioning of the witnesses when they appear.  Finally, even if it were possible it would not be desirable to be ignorant of the general history of the student's scholarship and character, because of the nature of what is to be judged, which is not just bare objective fact but most essentially the state of mind of the student.

 

                   Did he intend to deceive?  Where such a question occurs in the common law (as for example in libel litigation) it leads to enormous controversy.  Most precedents, fol­lowing­ the dicta of Oliver Wendell Holmes, try to substitute an objective standard of guilt or liability where they can, even where the language of the law speaks of so subjective a quality as intent.  As the English jurist Frederick Pollock once wrote to Holmes (quoting something he had just read), "The mind of man is not triable, for the devil himself knows not the mind of man."  To get around this impossibility,  Holmes invented  "the reasonable person," and in his decisions made the law presume that if this reasonable man would not have done a certain act without intending the conse­quences that arose, then the person who actually did that act must be presumed to have had that intent, too.

 

                   For cases of plagiarism in a university this standard is too strict.  The difference in age between a freshman and a senior is too great to permit the construction of a single "reasonable student" against whom we can measure the plagiarist at hand.  As we have seen above (under Plagiarism), the same objective act of transferring forty words from a professional treatise to a 'student' paper without attribution can prove culpable plagiarism by college standards in a senior majoring in English, but only inferior understanding in a freshman.  Can the jury decide guilt here without knowing the technically irrelevant fact that the student in question is a senior (or freshman)?   Yet that is what the blind use of rules of evidence would have us do.

 

                   This example is perhaps extreme, and the information (freshman or senior) would probably come out in any form of trial anyhow.  Let us construct another, more complicated, example, in which the verdict might well be mistaken if material not strictly associated with the case at hand were kept from the court.

 

                   Two students turn in examinations which are almost identical in several places, and they deny collusion.  The probability of such similarity being accidental is very small.  Guilty?  In the absence of eyewitness testimony that one was seen copying from another, the verdict must rest on probabilities, with the probability of a con­catena­tion of independent circumstances being of course the product of the proba­bilities taken separately.  Suppose witnesses prove that the students were sitting next to each other and that one could see the other's paper (The professor did not know this when he spotted the similarity in the two papers).  Now guilt is much more probable, on mathematical grounds.  What else can we know?  Suppose it turns out that when the professor confronted them in his office, they denied sitting next to each other?

 

                   At this point I would certainly decide on a guilty verdict.  A legalist would argue that lying about where you were sitting is not the same thing as copying a neighbor's paper; we mustn't punish them for academic dishonesty in this particular case on the irrelevant grounds that they are liars.  There is something in that, though not much.  After all, we are judging dishonesty, and now we have certain knowledge of dishonesty in an academic setting.  Maybe we should punish them for that, even if we find no conclusive evidence of their having cheated on the exam? 

 

                   The legal purist will say to this that we have no right to try these students on a charge that hadn't been mentioned in the indictment.  The students were not accused of lying to a professor; they were accused of cheating on an exam.  Shall we dismiss the original charge and draw up a new summons?  This may be the kind of thing demanded by the common law, as interpreted by the American judiciary over the centuries to the point where we spend more on judges and lawyers than any country in Europe (for example), and in some cases fivefold, but this kind of thing will not serve the interest of justice or of education, and we haven't the resources to do it properly anyway.  We have a couple of lying students before us and we want to know if they have been cheating on an exam.  Let us be reasonable and see what we can find out.

 

                    Now we will make it easy.  Suppose the file also shows that in the previous year these same two students had been brought before the honesty court on a charge of having turned in similar examination papers, but had been acquitted, or perhaps not brought to trial, because there was no conclusive evidence.  Their explana­­tion, that they had studied together and therefore shared a number of misconcep­tions that appeared similar on their exam papers, was plausible enough to get them off last year.  Does anyone seriously doubt their guilt now?

 

                   I believe the guilty verdict is obvious, and that no professor can have any quarrel with the verdict except that it was reached in accordance with principles denied to an American criminal jury.  The previous year's accusation is technically irrelevant, by common law standards, as is the lying to the professor about where they were sitting, yet in my mind they are significant factors and I believe I have a right to use them.   Not every country in the world --- indeed, very few --- hamstrings itself by American rules of evidence, and I cannot believe that Denmark or Italy are fundamentally less free or less just than we are.

 

                   More than this, we must remember that each strengthening of attack leads to a strengthening of defense.  In the criminal courts the prosecutor, knowing how difficult it is to marshal a sufficiency of admissible evidence, has the police investigate to a depth impossible in a university.  They gather fingerprints, they match broken bits of glass, they photograph the scene of the crime, they interview numerous witnesses, they offer rewards for information, and so on and so on.  If we in the university did have a system of judges and lawyers that could correctly interpret and enforce the rules of evidence and all that, and if we, like the prosecutor's office, found ourselves that hard put to obtain a conviction, we would have only two choices:  Either we would have to abandon all difficult cases, which would mean giving over our examina­tion and grading system to academic criminals, or we would start having to spend the time and money on police methods that our States and Counties do.

                  

                   The first alternative has a certain popularity in the academic com­munity, though it is not a majority view.  There are those who say, of cheating students, that they "are only cheating themselves," so that it is not worth scholars' time to worry about it. (See Chapter 8, Why Bother?)  This attitude is less prevalent today than it was in the 1960s, nor is it an attitude much held by students, either, who are anxious about the possible devaluation of the university credentials they intend, almost all of them, to earn honestly.

 

                   In the other case, where difficulties of due process are thrown up to such a degree that difficult cases turn impossible, and there is danger of something like anarchy in the domain of academic dishonesty because professors would rather avert their eyes than be pilloried as persecutors and then informed the cheater is "not guilty," the university itself will find it necessary to take a hand to restore the balance.  It will have to engage detectives and prosecutors from downtown to find the evidence that will "hold up in court."

 

                   The evidence will be there, after all.  In the supposed case of the two students who copied on the exam, for example, where evidence that they had tried the same stunt before and had got away with it, and evidence that they had tried to deny sitting together, would be inadmissible in the honesty court, a good lawyer's cross-examination would probably convict them out of their own mouths.  Of course, that lawyer would cost a thousand dollars a day, and his cross-examination would have to have been preceded by some detective work among the friends of the accused, producing evidence that they had planned to sit together in a certain way, or that they had been overheard conspiring, perhaps.  Another thousand dollars a day for detectives, and all in the interest of due process.

 

                   Something like this happened in the 1960s and early 1970s, during the student revolutions, when faculty discipline broke down, when the disorders were to a large degree fomented by faculty members enchanted by legalisms and related virtues.  At my university there were several distinct episodes of insufferable behavior: a "sit-in," the haras­sment of a visiting would-be speaker, and a race-related fracas in the student government culminating in a species of kidnapping, i.e. the barricading of the student Senate's meeting room all night pending

negotiation of their release.  Each of these disruptions was followed by a disciplinary hearing at which the defendants demanded, through lawyers, a close imitation of criminal court procedures.  In the climate of the times, especially because of the attitude of a vociferous faction in the faculty, the university found it necessary to go through the whole rigmarole; indeed, its own downtown lawyers insisted on it, and quite rightly so, once the students were permitted to begin with pro­fessional lawyers of its own.

 

                   The results at Rochester were no different than they would have been without the lawyers:  The guilty students were pronounced guilty and let off lightly.  But the process by which all this happened was profoundly different from what is appropriate to a university; it was a process that helped destroy the authority of the university in the eyes of the students and faculty, an authority that is only slowly being regained.

 

                   Lawyers sat on both sides of the courtroom, charges were drawn up and subpoenas issued, witnesses were sworn upon the Bible, cross-examinations went on and on, and professors of mathematics and Renais­sance literature found themselves solemnly granting or denying motions to strike this or that from the record as hearsay or whatever.  The whole exercise was not serious, though it was dangerous; it was the University's acceding to the morality of "revolution for the hell of it," as Jerry Rubin the Yippee leader --- or was it Abbie Hoffman? --- put it.  We are all acquainted with the legalisms of small children (You didn't say I couldn't sit here; you said I couldn't sit here [half an inch away]), and we all know that to argue such things is both futile and harmful to their own later under­standing of civilized behavior.  The same is true of student dishonesty cases at a somewhat later stage of their development.

 

                   In short, the duty of the university in keeping cheating to a minimum is a duty to education, a duty to all students, both the accused and the innocent vast majority whose credentials and system of incentives is at stake, and a duty to the public which needs to trust the university to have done its teaching job and certified only ac­complishments it knew to be valid.  Looking at only part of the evidence, blinding ourselves to what we know, according to a common-law rule of evidence and procedure that has developed over centuries for a very different purpose, for fear that innocent commoners might otherwise be hanged by prejudiced or malicious magistrates, is a dis­proportionate appearance, and not the substance at all, of justice.