Judicial Affairs – A Report of Observation, Debate, and Dissent
Fighting For Important Causes In State And Federal Courts
In recent months the Office of Judicial Affairs has encountered much criticism. The concern has been focused on the handling of specific cases, in particular, and the methodology of how student conduct cases are handled in general.
On September 20, 2000, the Director of Judicial Affairs, Joseph Puzycki, addressed the Undergraduate Student Government and answered questions related to the Office of Judicial Affairs. On October 4, USG convened a commission to investigate Judicial Affairs. The commission was disbanded on November 29, because of criticism that the commission had not made any progress. Students for Accountability and Reform (STAR) has been compiling data since July 2000 and decided to issue a report based on information and general observations of the disciplinary process.
In July of 2000 there were several cases brought to the attention of the University community that warranted review of the procedures of Judicial Affairs at Penn State University. The report finds numerous issues relevant to the accountability of the Office and the report suggests several key reforms.
– A student’s legal counsel is barred from observing any Judicial Affairs proceeding. Legal counsel may not advise a student during a Judicial Affairs proceeding. Judicial Affairs will not engage in any correspondence with the legal counsel of a student.
– Since the Judicial Affairs is more expedient than the criminal process; a student’s testimony offered in a disciplinary hearing can be subpoenaed and used against them in a court of law. If there is any collaboration between the University and law enforcement agencies, a student could unknowingly waive their Fifth Amendment rights. A student should be made aware that their testimony could be used against them in a court of law.
– Many students offering input to this report have experienced the initial meeting with the Judicial Affairs administrator, which is analogous to a preliminary hearing in a criminal court of law. Administrators have held that the purpose of this meeting is to facilitate a meeting with the student for the finding of fact. Many students have found this meeting to be a formality, whereas the Director had already found them guilty of allegations before students were awarded the opportunity to prove their innocence. These decisions were made based on police reports and before any input was solicited from the student charged. Students are not told to prepare a defense or present evidence at this meeting even though it will be used to determine the guilt or innocence of the student.
– There should be specific guidelines established to define what jurisdiction the Office of Judicial Affairs has in student Code of Conduct violations that occur off-campus. Testimony by the Director suggests the jurisdiction is global from the time a student enrolls until the time the student graduates.
– In numerous instances, the Office of Judicial Affairs failed to provide the specific definitions of charges to the students before their hearing. The Director confused the description of misconduct with the definition of charges. The Office retains a training manual intended for internal uses that includes definitions of charges, procedures for hearing officers, and a range of sanctions based on charges alleged. This document is not released to students.
– The current Director of Judicial Affairs has no professional experience in law. Director is not qualified to interpret questions of law, due process, or constitutionality.
– Based on testimony by the Director, it has been admitted that he is an administrator whose direct supervisor is Bill Asbury, Director of Student Affairs, and that he takes directives from him as a subordinate. This questions the ability of Judicial Affairs to make independent decisions concerning guilt or innocence of a student especially when the case is of a political nature.
– Under “Rights and Responsibilities” in the student handbook, the student is awarded the right to a hearing open to the University Community. In practice, Judicial Affairs restricts this right to only those with a faculty, student, or staff ID card. Members of the board of trustees, family members, and members of the press who do not posses an ID card are barred from the proceedings. There are conflicting interpretations of University Community used by Judicial Affairs both in theory and in practice.
– Under “Rights a Responsibilities” in the student handbook, the student is awarded the right to audiotape their hearing. The Office of Judicial Affairs attempted to deny this right to students in an administrative hearing.
One could not help but notice the rash of events of this past year in which student discipline was the focus. Ranging from the second Arts Festival disturbance in three years to the Rashard Casey incident to the Osmond Five, it seemed that students were becoming more and more criminal in their activities. While the causes of the acts could be debated for years to come and no concrete answer would be found, one clear problem emerged: that of Judicial Affairs, the disciplinary branch of the university. As students in high-profile cases were put through the system, their complaints and anger became more and more pronounced, and the university was forced to respond. Those students listed several complaints with Judicial Affairs, and to no surprise, the university responded with little more than disdain. Over the course of fall semester, students talked and talked and talked. The Undergraduate Student Government (USG) failed to address those concerns, leaving students with little hope for change. In hopes of turning those productive discussions into concrete changes, Students for Accountability and Reform (STAR), a bi-partisan group most well-known for its 21-day occupation of Old Main lawn last year, took it upon itself to write a report. A report, as stated in the title, of observation, debate, and dissent.
This report is not a full dissection of Judicial Affairs by well-seasoned experts, rather, it is the product of the testimony of students who were dragged through the whole process and who consequently pointed out problems that they observed. While the administration may scoff at this report and claim that those students simply misunderstood the process or are bent on revenge, they cannot deny that the most powerful indictment is that which comes from those who have experience. The students may not have Ph.D’s, but nonetheless highly aware, observant, and sensitive to injustices that those of older generations may have become unaware of. This report is one of observations, collected over the course of a semester in which justice and fairness in the university were hotly debated topics. The experiences are not inclusive of all students who may have been put through this process, but the report has tried to cover the points well and address issues of importance to most students. This has been a collective effort based onhours and hours of discussions, arguments, and communication between students from different backgrounds, with different opinions and different experiences.
This report is meant to open the Judicial Affairs debate. All too often debates in the university remain mired in bureaucracy or are dominated by the opinions of the most resourceful (the administration), and STAR is attempting to alter that. This report is meant to redirect the debate towards issues of substance, and force the administration which has steadfastly supported Judicial Affairs to respond in a substantial way, not with a simple press release claiming they will look into it. In writing this report, STAR is trying to infuse a university debate with what it rarely has: a student perspective.
Judicial Affairs states its purpose is “to support the University’s educational mission and goals by promoting a just, safe, orderly, civil,and positive University climate through behavioral standards, disciplinary standards, training, informational programming, and intervention efforts.” Furthermore, it states its vision is “a system which is just, equitable, effective, educational, and expeditious; a system which promotes student growth through individual responsibility; and a system in which the success of its educational endeavors are characterized by increased civility.” (Judicial Affairs Strategic Plan Update, 1999-2000) These descriptions of what Judicial Affairs is and purports to be is noble and idealistic, and seems to adequately reflect the needs and interests of all those in the university community. Sadly, hopes do not always equate with reality, and in this situation this seems to be the case. Judicial Affairs has come under increased scrutiny as of late for its dealings in relation to certain cases, and it is thus necessary for us to study in depth the problems most often mentioned and possible solutions. The university disciplinary system will only start resembling its vision statement when all concerns are properly addressed and investigated.
This report does recognize that some violations or crimes are of a very serious nature and have to be dealt with properly by the university, such as cases of sexual assault, rape, and other such violent events. This does not detract from the belief that all students have the same fundamental rights, and those rights must be applied and respected in all cases. These rights are indivisible, as stated in the founding documents of this country, and if one person’s rights are ignored, all people’s rights are ignored.
The majority of this report will refer to three events during which students were arrested and consequently put through Judicial Affairs. The first was the Osmond Five event during the National Governors Association (NGA) Convention in Summer 2000, the second the anti-death penalty civil disobedience march during the same convention, and the third the Summer 2000 Arts Festival disturbance. It will also discuss in brief the case of Rashard Casey. It is not representative of all student cases, but addresses systematic flaws that may exist in all. If these flaws appeared in these cases, what might stop them from emerging in others?
For sake of space, this report will not describe in detail the Judicial Affairs process. This information is available online at http://www.sa.psu.edu/ja.
Osmond Five: This event occurred during the National Governors Association (NGA) Convention, from July 7-11, 2000. “The People’s Convention,” organized by Penn State students, faculty, and community members as an alternative to the NGA, highlighted their disdain for the private, corporate-sponsored NGA Convention. (The Washington Post stated of the NGA Convention: “Access for people with money, exclusion for the rest. Isn’t democracy supposed to be better?” Wednesday, July 12th, 2000.) During the course of events, participants in the “People’s Convention” held discussions, workshops, rallies, and marches addressing the social issues ignored by the governors, and attempted to engage governors in debate and discussion on these issues of concern, ranging from poverty to environmental degradation. On the final day of the convention, while the governors were to attend a private dinner function in Penn State’s Student Union Building (hereinafter: HUB), some of the organizers decided to stand on the Osmond patio in front of the classroom building of the same name, located directly across from the HUB. Students intended to stand with signs while Governors arrived at the HUB. While people not involved in the protest walked freely in the area, state police demanded the protestors move to Boucke Building, out of view of the HUB. The students involved refused, stating that they had both the constitutionally protected right to express their opinions and beliefs, and were standing in a university-designated “free speech area.” Escalations ensued, including the issuing of an order by Penn State Police to remove a banner that had been hanging from the second floor balcony approximately 15 minutes before the Governors and members of the press were expected to arrive at the NGA event. Concerned students entered Osmond, a building open to the public, and climbed to the balcony where their banner had been hanging for days prior and where students have historically had open access to hang banners. Soon thereafter, Penn State police forcibly removed the five students from the balcony and placed them under arrest. Charged with “defiant trespass” by the police, Osmond Five had their charges dropped at a July 20th preliminary hearing after legal counsel for the students argued successfully that prior agreements with administrators demonstrated legal license to be present on the balcony. Nearly a week after charges were dropped in a court of law, the University proceeded to charge them with “failure to comply with a directive” and “unauthorized use of university buildings/facilities.” After a series of administrative hearings, they were found guilty but not sanctioned.
The Anti-Death Penalty Advocates: This event occurred during the same weekend as the NGA Convention, planned and executed by members of a variety of anti-death penalty organization who had planned acts of civil disobedience to show their utter disgust with the death penalty, which they saw as immoral, inhumane, and grossly unjust. Their main action included 15 protestors chaining themselves together and walking down the Park Avenue extension towards the Penn Stater Conference Center, where the governors were meeting. As they peacefully attempted to cross police lines, they were arrested and charged with disorderly conduct and obstructing highways and other public passages. Included in the list of those arrested were two Penn State students, whose charges were dropped but who were charged and sanctioned by Judicial Affairs.
The Arts Festival Disturbance: On the Saturday of the Arts Festival weekend, around 2 o’clock in the morning, between 2500 and 3000 people gathered at the intersection of Beaver and Locust, the heart of the area known as Beaver Canyon and the location of the riot two years prior. As the night progressed and more people became more rowdy, a disturbance broke out that included isolated acts of lamppost shaking, bottle throwing from balconies above, and the uprooting of road signs. Police began dispersing the crowds using pepper-spray, and arrested 18 individuals (more were to be arrested in the following days). Most of the individuals arrested were charged with failure to disperse and disorderly conduct, and preliminary hearing testimony brought forth evidence that the majority of those detained had not been involved in any violent or destructive behavior. Judicial Affairs rapidly charged and sanctioned students, some of which contested their charges and sanctions and the right of the university to extend its disciplinary arm to events occurring off-campus.
Problems and Solutions
Problem: The definition used by Judicial Affairs to decide what off-campus violations they can prosecute is reasonable, but the officeuses it too liberally and stretches its definition too freely to fit situations that are simply embarrassing to the university and should not merit charges nor sanctions.
Judicial Affairs, on its web page and in printed material, states that an off-campus violation must have a “Substantial Adverse Affect” on the community to be taken up by the office. They define substantial adverse affect as the following: “Substantial adverse effect means that the continued presence of the student on campus is likely to endanger others, interfere with the educational process and orderly operation of the University, or that a student or other University member is a victim of the behavior.” (http://www.sa.psu.edu/ja/process.html) It seems reasonable, for the university to have the ability to ensure that those who commit crimes of a certain nature, most likely violent, are sanctioned or forbidden to return to campus. For example, a student charged with rape waiting for trial could fall under this scope, for his or her presence would not only make other students uncomfortable, but also threaten to disrupt the orderly operation of the University.
The University appears content in its application of this rule to students whose crimes do not fit the description. For example, students arrested in connection with the Arts Festival disturbance of July 2000 were sanctioned by Judicial Affairs, even though the majority of those arrested were charged with misdemeanors such as failure to disperse and disorderly conduct. The majority of those sanctioned by Judicial Affairs committed crimes that would not threaten others on campus, would not prevent the university from functioning properly, and did not have any specific victim. Judicial Affairs sanctioned the students because, according to their statements and justifications, the disturbance itself had a substantial adverse affect on the community, so those arrested in connection with it came under the scope of the definition. This is simply flawed logic. In taking this position, Judicial Affairs is assuming that the disturbance would not have occurred if those that had been arrested had not been there and that they were the ringleaders who pushed others to violence. From court statements, one will see that the majority of those arrested did not participate in any form of violence or encouragement that may have led to violence. Almost three thousand people aided in the disturbance, but according to the university’s statistics of those charged, only a mere handful of people were the cause. Furthermore, in using this justification, Judicial Affairs ascribes the worst of the disturbance to the people who were arrested, even though evidence proves the contrary. This is what is commonly referred to as “guilt by association.”
Those arrested and sanctioned in connection with the disturbance largely feel that Judicial Affairs took the case more because of political considerations than their actual stated ability to do so. The disturbance was an embarrassing event for the university, especially for a university that has so rabidly fought binge drinking over the last three years and seems to be failing. The university had to flex its muscle, so it sanctioned the arrested students, even though it had no real legal reason to do so, judging from its own definitions. This is quite disturbing, for it shows that the university is not following its own rules with respect to charging and sanctioning students, a clear breach of the contract and trust students enter into when the attend the university.
Solution: Judicial Affairs must follow its definition of substantial adverse effect, with which it judges whether to sanction a student for an off-campus violation, explicitly. It should judge only on the individual violation that occurred (not what others did), and do so in an objective manner that takes into consideration the nature of the violation, not the potential for embarrassment it may have for the university.
Problem: Judicial Affairs does not allow the use of character witnesses during hearings or conferences.
In their published materials, Judicial Affairs states that they only allow “witnesses of fact,” meaning the office only allows witnesses that were present at the alleged violation and can thus verify or dispute the charges. Character witnesses are often used in courts to build up the ethos of the accused, to show the judge or jury whether the crime in question was an isolated event or rather a pattern of lawlessness. This can be extremely important, as first-time offenders are less likely to receive harsh sanctions than repeat offenders that pose a more obvious threat to society. The same should apply to Judicial Affairs, for it is of vital importance to the accused that those judging them understand that their violation may have been a single slip-up, not a continuing pattern of crime that may warrant a more severe sanction. Character witnesses are also helpful in placing the accused in a certain context, that is, describing their academic work, their extracurricular activities, their involvement in the community, and so on. This information allows Judicial Affairs to better understand the accused, their history, and the chance that they may again violate a part of the Code of Conduct. Character witnesses allow this information to come forth, and should thus be allowed in all proceedings. Judicial Affairs should allow “expert witnesses,” witnesses who are experts in a specific field who may be of value or importance to the case at hand. In cases involving freedom of expression, experts on the First Amendment and constitutional law are allowed to give expert testimony. It is understood that the accused must validate the need and purpose of each of these witnesses, in order to not intentionally delay a proceeding.
Solution: Judicial Affairs should allow character and expert witnesses, not just witnesses of fact.
Problem: Judicial Affairs does not take into consideration if charges against the accused have been dropped in criminal courts.
Oftentimes, one may be arrested, charged with specific crimes, and consequently have all those charges dropped in criminal court for a variety of reasons. Judicial Affairs disregards the status of criminal charges, even though they may have a large impact on the ability of the office to present its necessary “clear and convincing” evidence to merit university charges and sanctions. In the three cases examined – the Osmond Five, the anti-death penalty advocates, and the Arts Festival disturbance – charges were dropped in court only to be pursued by Judicial Affairs. The office claims that it works on a different standard, with different definitions, but thesedifferences are not so pronounced as to allow them to ignore the rulings of criminal courts. Certain individuals arrested at the Arts Festival disturbance had their charge of disorderly conduct dropped after testimony clearly showed that they were not being “disorderly,” yet Judicial Affairs pursued these charges most vigorously. The claim of different standards and definitions seems moot in this case, seeing that there are not many different definitions of “disorderly conduct” that could be applied in different cases. The status of that specific charge in criminal court should be considered in Judicial Affairs, because if the state cannot provide evidence to merit the charge in a preliminary hearing (where the lowest burden of proof is needed to hold a charge over for trial), could a reasonable person assume that the university could suddenly provide clear and convincing evidence that the charge had any merit? Doubtful.
With the Osmond Five and anti-death penalty advocates, the charges were all dropped in preliminary hearings. The state found no merit for their arrest, yet Judicial Affairs charged all those involved and proceeded to sanction them. This leads to the assumption that Judicial Affairs did not provide adequate evidence for a charge, and may not in other cases.
Additionally, the university will freely submit police reports as evidence, but seem opposed to the use of court testimony by the accused. Because Judicial Affairs accepts testimony from one side, it is logical for them to accept testimony from the other. Further issues arise when one considers the tandem operations of local law enforcement agencies and the university. In a realistic sense, students experience an element of “double jeopardy” when tried twice for the same incident, especially when these actions are coordinated between the university and local law enforcement.
Solution: Judicial Affairs should consider the status of charges in criminal court, especially if those charges are similar to the ones the university is using to charge the accused, or if the dropping of those charges would have a large impact on the ability of the university to present the clear and convincing evidence they requite to merit charging a student.
Problem: Judicial Affairs does not have the independence that is expected of a judicial system, and is currently prone to undue political influence by the administration.
This is imperative in any effective judicial system. Judicial Affairs needs the ability to operate as an independent regime. Judicial Affairs, to be completely fair in establishing the Code of Conduct and enforcing discipline on campus, must be allowed to function more independently than it currently does. Case in point: soon after the Arts Festival disturbance of this year, the university spokesman advocated sending the accused to jail or having them expelled from school. (“Our hopes are that people start to get the message as people get kicked out of school and sent to jail,” Director of University Relations Stephen MacCarthy. Pittsburgh Post-Gazette, August 13th, 2000.) This statement emphasizes the university’s sentiment that the students were “guilty until proven innocent,” and not “innocent until proven guilty,” upon which the American judicial system is based. Being given by a spokesperson of the university, the statement instantly places the independence of the judicial branch in question. If this is the university position on the matter, how can we be assured that it will not pressure Judicial Affairs to be overly harsh and treat the accused in a manner not considered fair, seeing that the office of Judicial Affairs is under the Office of Student Affairs, and ultimately the president of the university?
Most disturbing was the case of the Osmond Five, whose process through Judicial Affairs was tainted from the beginning by administrative influence. Those arrested during the incident argue that their arrest was ordered directly by the President of the university, given that he watched the students upon his arrival at the HUB for a reception with the governors. Furthermore, those arrested were known student activists who had on a variety of occasions raised objections to the actions of the university in relation to multiple social issues. The question has to be asked (and has been asked): if these had been Lion Ambassadors holding signs praising the governors, would they have been arrested, prosecuted so vehemently, and their credibility challenged?
Judicial Affairs should be able to release statement independent of the university, even if it contradicts the stated opinion of other offices of the university. Furthermore, Judicial Affairs should not be under the control of the Office of Student Affairs as is now, for this allows undue administrative influence. Justice will only be served if the office of Judicial Affairs can be independent of any outside influence, especially in situations as explosive as the cases described above. Supervision or checks and balances must exist, and they should come in the form of a committee composed of students, administrators, and faculty members that have no vested interests in Judicial Affairs other than wanting to ensure a fair and accountable process.
Solution: The Office of Judicial Affairs should be independent, and be allowed the leeway to release statements that contradict those of the university, especially regarding the status of student cases. Furthermore, formal supervision of Judicial Affairs should be vested in a shared governance committee composed equally of students, faculty, administrators, and staff whose co-chair includes at least one student.
Problem: There is no explicit contract between the students and the administration stating that students have read and understood the rules, regulations, and procedures of the university and that binds the administration to those same rules and procedures they establish for themselves.
“The Code of Conduct, which was constructed by students, faculty, and staff at the University, specifically states that students are expected to support the University’s essential values and maintain a high standard of conduct.” (Bill Asbury, “The Handling of Student Conduct Cases at Penn State”) One of the root problems of Judicial Affairs and the Code of Conduct is simple: students know nothing of it. Fundamentally, students do not know of the rules, regulations, and responsibilities they are indirectly agreeing to as they enter the university. They are signing a “silent contract” with the university, an arrangement that seems to largely benefit the administration.
Precedence in law states that a contractual relationship exists between the university and the student, established most notably in the 1983 case of Coveney v. President and Trustees of The College of the Holy Cross. This contract basically binds the student to the rules of the university, and conversely, binds the university to the procedures it sets forth for itself. So, if the university grossly violates its own procedures in prosecuting violations, they have breached a contract and are liable for lawsuits. If students have a contractual relationship with the university, shouldn’t they have to physically read and sign such a contract, so that they can be aware of their rights and responsibilities, and those of the university? Having to do so would allow students to be more aware of the system they are opting into, and would also allow them to be a check on the administration and ensure that all rules and procedures are followed explicitly. The university gains a good deal from our ignorance in this area; they have the ability to treat us as they wish because they are aware we know little of the university disciplinary system. A recent case involving a student who sued his university for breach of contract, Arlen-Schaer v. Brandeis University, stated quite vividly that:
the university could have stated that in disciplinary matters students must accept any procedure acceptable to, and made in good faith by the university. Any students contemplating applying for admission to Brandeis would know in advance that he or she would be entering an institution where students are exceedingly vulnerable to the amorphous whims of administrators. Brandeis would then see what such a regime does to its number of applicants for admission.
Fundamentally, if students become more aware of the regime to which they are agreeing to upon admission, they are more likely to reconsider admission or demand certain changes once admitted. A written contract allows students to better understand the disciplinary system by which they must abide for their college-term, and make them better prepared to demand accountability from the university. Moreover, the university becomes liable to a legal redress whenever it violates its own rules or procedures. This contract could come as an addition to materials normally sent to incoming students, or be a requirement to receive a Penn State CAC access account.
Solution: Students entering the university should be required to sign a contract stating that they have read and understood the rules, regulations, responsibilities, and procedures regarding student disciplinary matters. If they are under legal age, a parent or guardian should also be required to sign. This contract will bind the student and university in a contractual relationship, in which both parties recognize their roles and pledge to follow them explicitly.
Problem: Definitions of charges are often vague, and not readily accessible to students. Each category of charges includes an “Other” charge that can be used at the whim of administrators.
Most students charged by Judicial Affairs do not have the charges defined or have the possible sanctions described. In the disciplinary conference, where the accused meet with a Judicial Affairs staff-person and are formally charged, this information can be vital. Not having the definitions of the charges makes contesting them a futile exercise, and not knowing the range of sanctions makes it difficult to understand the severity of the situation, especially in relation to similar cases. Students arrested in connection with the Arts Festival disturbance attest that they were charged with “failure to comply,” a charge whose definition explicitly states that it must occur on “university-controlled property,” (Beaver Avenue is not “university-controlled”). This means that Penn State rules and regulations were being violated by Judicial Affairs itself. Either the staff-people did not know they were making this mistake, which is rather bothersome seeing that of all people they should know the charges, or they were adding the charge in hopes that they could justify tougher sanctions and that the student would not notice. Certain students did notice, made this known, and got little more than an apology.
Another example is the many students who were and who are charged with some form of disorderly conduct, a charge whose definition seems overly broad and subject to wide interpretation on the part of Judicial Affairs. Associated with this charge, and all charges, are rankings of the charge. Either the charge is “minor,” “moderate,” or “major,” and certain sanctions are listed next to each. The problem is this: minor, moderate, and major are not defined. A student arrested in relation to the Arts Festival disturbance was charged with major disorderly conduct by the university (after having the same charge dropped in court), without having it defined. The definitions of the charges should be made public, in order to avoid confusion and to allow students to better contest charges, adequately prepare a defense, and understand the range of sanctions to which they are subject. In the disciplinary conferences of many students, the aforementioned definitions were never offered.
Upon investigating all possible charges, which are divided up into categories like “Disorderly Conduct” and “Theft or Damage,” each category contains explicit charges (book theft, urinating in public, etc.) and an “Other” charge. This “Other” charge includes any undefined charge used at the discretion of Judicial Affairs. A vital component to due process is having set rules established. In this instance, the ad hoc charge of “Other” could be applied, carte blanche, while essentially creating a dilemma where a student is being charged with something the university did not clearly establish as a violation of the Code of Conduct.
Solution: All materials relating to charges and their definitions should be made widely available, preferably on the Internet/World Wide Web, and should be presented to the accused at the disciplinary conference. Charges need to be more explicit in definition, specifically the “minor,” “moderate,” or “major” classifications. The “Other” charge must be dropped from all categories of violations.
Problem: Lawyers are not allowed, or are strongly discouraged, from being present at Judicial Affairs hearings or from advising the accused during the process.
Judicial Affairs claims to work on a standard separate from the legal system, and thus lawyers are unnecessary because their expertise does not overlap with the university disciplinary system. In some cases this may be true, but in more serious cases involving disputed evidence, charges, testimony and so on, the presence of a lawyer could have a large impact on a specific case. Many cases exist in which the university disciplinary system and the American legal system overlap, and when questions of constitutionality, due process, and interpretations of law emerge, lawyers could offer valuable insight that aids in the defense of the accused. Furthermore, lawyers could better understand the process and issues at stake than the accused, and could thus serve as a rational counsel throughout. Lawyers could also prove important in stopping Judicial Affairs from using testimony or evidence that has been discredited in a court of law, and making the office aware of the status of criminal charges.
The most important role a lawyer could play is in protecting the Fifth Amendment rights of the accused. The Fifth Amendment, which covers issues of due process, states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Italics added) (http://www.nara.gov/exhall/charters/billrights/billrights.html)
The Fifth Amendment denies the university the ability to induce the accused to incriminate themselves (“witness against himself”). Because Judicial Affairs is more expedient than the criminal courts, it is likely that the accused will go through the university process prior to that of the courts. In such a situation, the accused may be forced to indict him or herself to avoid certain sanctions. If this testimony is subpoenaed by a court of law, the accused will have inadvertently deprived themselves of this right. Having a lawyer present could avoid such a situation, and protect other rights the accused may enjoy.
Solution: At the least, a student’s legal counsel should be allowed to observe during all Judicial Affairs proceedings, to advise the accused while testifying in matters that may be used against them in a court of law.
Problem: The disciplinary conference does not serve the purpose of establishing the facts through studying opposing testimonies, and the outcomes (charges and sanctions) seem pre-determined by Judicial Affairs.
The Judicial Affairs webpage offers the following definition for the disciplinary conference:
The Disciplinary Conference is an informal meeting between a student, a staff member, or a designee of the Judicial Affairs Office. The purpose of this meeting is to examine the complaint, listen to the student concerns, and discuss circumstances regarding the incident. After discussing the incident fully with the student, the Judicial Affairs staff member or designee will determine whether formal action and/or charges should be filed. (http://www.sa.psu.edu/ja/process.html)
This conference can be equated with the preliminary hearing in a criminal court, when testimony is given, facts established, and decisions are issued regarding the merits of the charges. Judicial Affairs boasts that 98% of cases are settled in the disciplinary conference. Students in all the cases assert that the disciplinary conference is only a formality, because Judicial Affairs already establishes what the office believes to be the facts, and predetermines the guilt of the accused.
In one case, the accused student noticed that charges had already been filed prior to their testimony being heard. The disciplinary conference should in all cases serve its intended purpose: to establish the facts, discuss and define the charges and accompanying sanctions, and adequately describe the Judicial Affairs process. Student testimony should be given credit so as to properly understand the occurrence and the events which led to it. Consideration should be given to not allowing disciplinary conferences until after a preliminary hearing in a criminal court has been held. The preliminary hearing helps establish what is accepted as fact, what evidence is relevant and acceptable, and what charges have merit. This could all have a large impact on the evidence Judicial Affairs can use to establish if a violation occurred, and what charges to press.
Solution: The disciplinary conference should serve as a forum in which the facts are established using opposing testimony and in which charges are discussed and defined, as are possible sanctions. Furthermore, disciplinary conferences should occur after preliminary hearings so as to ensure consistency in the use of evidence and the facts.
Solutions and Alternatives
Three options seem to exist for Judicial Affairs: (1) leave things as they currently are, (2) create a mechanism for changes while leaving the overarching structure intact, or (3) abolish Judicial Affairs altogether. Each option must be considered, and they are briefly discussed below:
1) Leave Things As They Are: this is the preferred university option. They have and will continue to claim that the Judicial Affairs system is fine because it has been widely accepted by students, it has been in place for quite a while (“The system’s a good system, in place for many years,” Bill Mahon, Director of Public Information, Pittsburgh Post-Gazette, September 17th, 2000) , and is a model for other universities. To dissent from their justifications for keeping Judicial Affairs as is, one simply has to ask these simple questions: did students really widely accept the system? Was there a vote that we all missed? Just because something is old, does it necessarily mean its good? Does age necessarily equate with quality? Finally, does being a model for other universities mean ours is the best (in terms of fairness and justice), or simply less bad than others? In answering and debating these questions, interesting alternatives may slowly emerge.
2) Create A Mechanism For Change While Leaving The Overarching Structure Intact: this solution would include a substantial review of Judicial Affairs and a proposal for change, led by a committee with equal representation and leadership by students, faculty, administrators, and staff. This committee would seek testimony of students that have directly experienced the university disciplinary system, and use that testimony, debate, and legal expertise to formulate a package of changes that would be adopted by the university. The Code of Conduct would be reviewed, as would rules, regulations and procedures pertaining to Judicial Affairs. The committee would be given substantial leeway and independence, and be open to public observation and interaction.
3) Abolish Judicial Affairs: extreme as it may sound, this option stems from having faith in the American legal system to properly run its course. Students arrested and charged would necessarily be put through the legal system, and one must assume that that system would best sanction their crime, and if the crime was of such a nature to merit it, prevent the student from returning to the university. This option also relies on having faith in students, and on having hope that treating students as responsible adults will lead them to act as such. This seems very feasible as Judicial Affairs only dealt with 1,010 cases during 1999-2000 academic year. This shows that students are not active criminals. Academic matters such as cheating and plagiarism would still be dealt with by the university because those come directly under the scope and mission of the university. Any other matter would be left to the courts.
STAR places full faith in option two. STAR firmly believes that while the structure may remain, it is nothing less than imperative that a shared governance committee be empowered to formulate positive changes for Judicial Affairs. This committee would allow for independent, objective review, and furthermore increase the interaction and participation of students in their university community. A shared-governance committee serves as a valuable learning experience, for in addition to helping students feel empowered to promote change, it also allows the administration and faculty to better understand the 40,000 undergraduate students that compose the core of this community.
This report, as stated in the introduction, was one of student observations and complaints with the university disciplinary system. Throughout, we have attempted to address fundamental problems we have found in Judicial Affairs, and tried to propose workable solutions that will in the long run benefit the student body. We hope this report will be given due consideration, seeing all the effort and time that went into it. It has been the product of students doing what students should do: thinking, analyzing, and being critical of the information and structures in which they have to function.
STAR recognizes that Judicial Affairs has worked positively in certain cases, and has been open in providing information when requested. The processes and rules they have established and abide by are in many cases well thought out and logical, but in others, it is just the opposite. STAR applauds the Office of Judicial Affairs for the efforts they have made to accommodate students concerns, but now, those concerns have to be more seriously considered and discussed with students, faculty, and administrators.
In a recent editorial written by Vice-President for Student Affairs, Bill Asbury stated that the Penn State judicial system “must continue to operate with the highest level of integrity,” to ensure “a system that treats all students fairly, is based on factual record, and upholds the fundamental principles of our student conduct system.” Heartening as it is to hear these words from a senior administrator, the fact remains that the university has taken no strident measures to rectify a mounting problem within the university’s judicial system. Student complaints and observations go largely unheeded. STAR seeks to open the debate on Judicial Affairs and with Judicial Affairs, in an effort to gain that which is owed students: a chance to work with our leaders to formulate plans and changes that will benefit the majority. STAR encourages the administration to open dialogue with the student body concerning the Office of Judicial Affairs.
Afterthought on Rashard Casey
The case of Rashard Casey provided an interesting point of comparison to other cases concurrently subjected to Judicial Affairs. In essence, the Casey case was exemplary of how the university disciplinary system should, in fact, work. Noting nothing of his guilt or innocence, his case is one of interest, especially within the Penn State University community.
The university never charged Casey. While the university reasoned this was due to the fact that the Hoboken police would not turn over certain information to Penn State (a claim police strongly refuted), it seems that the administration waited for Casey’s criminal case to go through the appropriate legalities. Furthermore, after all charges had been dropped against Casey, Judicial Affairs pressed no charges, even though by their arguments regarding the alleged Arts Festival “rioters” and Osmond Five, the department had every responsibility because they “work on a different standard” to uphold justice. The case involving the Penn State athlete provides deeper insight into how Penn State views its students, associating their value with their potential to attract capital to the university. In the midst of the Casey scandal, Penn State placed a link on their web page that directed the user to an editorial written by the Centre Daily Times (August 22nd, 2000) that stated the university’s position in not prosecuting Casey was correct. By doing this, the university validated its actions concerning Rashard Casey through one editorial written in a local paper. Included in the editorial was the following: “it would be wrong to punish him [Casey] or any student who is merely charged with such an offense…a fundamental guarantee for all Americans is that we are innocent until proven guilty…” Had the university realized the hypocrisy of their use of that particular editorial to support their actions, while directly violating the aforementioned statement with respect to other students involved with Judicial Affairs, the link would have most likely not been placed.
More importantly, when Casey was cleared of all criminal charges, the university felt compelled to place the announcement on the Penn State University website. The bias toward Casey is blatant, considering those involved with the Osmond 5 also had their charges dropped, though nary a mention appeared on the Penn State Homepage. The entire Casey affair brought to light a disturbing fact: a student’s worth to this university is based on his or her monetary potential. Though it is unfair to reiterate the point and to increasingly involve Mr. Casey in this matter, Casey’s case is a clear example of the inconsistencies that encompass this university’s disciplinary system.