Including, But Not Limited To; An Analysis of UCSD’s 2012 Student Conduct Code

 

 

 

 

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By Joshua Marxen, Managing Editor of the California Review

This blog post is the complement of an article that will run in our next issue with the same title. In the article, I describe the differences between the old and new versions of the Student Conduct Code (referred to as “the Code” from now on). Both versions can be downloaded from revisedcode.ucsd.edu. In this post, I describe the path I took while researching the Code. I also discuss my extensive correspondence with Bryce Farrington, last year’s Associated Students AVP of Student Advocacy who participated in the SCCRW meetings as a student representative and bringing up concerns relevant to students, and Jon Carlos Senour, head of Student Legal Services. Their comments reveal much about the process of changing the code, and about the contrast between the public and private motives of the administration from his point of view on the Student Conduct Code Revision Workgroup (SCCRW). Finally, I review the changes in the Code that I talk about in the article, and make the case that we should notify the administration as soon as possible that there are serious issues with the new Code as it stands.

The Story of the Story

I won’t spend too much time on this, but I want to discuss one barrier I encountered while researching this story.

My research began with a lead from former California Review Editor in Chief Alec Weisman. The lead was the contact information for Bryce Farrington. Farrington was able to give me an older draft of the new Code from April earlier this year. After skimming through this, I proceeded to the website linked above, where I downloaded the new Code.

At this point, locating the old Code became difficult. The above website did not contain a link for the old Code at that time, and a subsequent google search also failed to locate it. The old Code was nowhere to be found. I consulted Bryce on this issue, and he told me to contact Student Legal Services and Courtney Hill, this year’s AVP of Student Advocacy for Associated Students. Courtney sent me a copy the next day. Although I was happy to finally have obtained it, it seems a significant administrational oversight to fail to keep the old Code accessible to students. (To be clear, the old Code is now available at the website posted above. You’re welcome.)

The Process of Change

When I talked to Jon Carlos Senour, he repeatedly stressed that to call the new Code a “revision” of the old Code was misleading. The process is better described as “rewriting,” he said, because at one point, the SCCRW decided to scrap the old Code and start from scratch. This was problematic, he said, because they didn’t even keep the skeleton of the old Code, the basic requirements that the new Code should have. “It’s like if you were designing a new car, and instead of upgrading your last model, you started from scratch… in the middle of the process, you realize, ‘oh, guys, we’re missing brakes on the wheels.’” (Note: quotes from Jon Carlos Senour are not exact, but proximate.) It is apparent from his testimony that this happened quite a bit.

The consequences of this approach to writing the new Code were made known after the completion of the third draft of the new Code last year in an AS resolution, written in part by Farrington during Spring Quarter, in which the following aspects of the draft were criticized:

  • The expansion and vagueness of the University’s off-campus jurisdiction in section IV of Draft Version 3.0
  • The ambiguity of the role of non-Student Advocate “advisors” found throughout the code, but most explained in Section VI Part of Draft Version 3.0;
  • The vagueness and inexplicability of the University’s ability to sanction an individual student or a student organization in the interim for reasons of “disruptive activity incompatible with the orderly operation of the campus” in section XI part A of Draft Version 3.0;
  • The inclusion of faculty and staff in the decision of a student’s responsibility in the Community Standards Board in Section XIII Part B even though the regulations of this code apply only to students;
  • No clear process for students to address grievances with particular policies and actions of the administration when administering the Conduct Code.

The final draft appears to have addressed the first, second, and fourth criticisms, but has not addressed the third and fifth. More details on this will be discussed below.

The mechanics of the process are more difficult to describe. Ben White of the Office of Student Conduct puts it in terms of a series of milestones:

  • May 2009: The Student Conduct Code Revision Workgroup was charged by Vice Chancellor– Student Affairs Penny Rue.
  • July – Aug. 2009: Workgroup members reviewed the current Student Conduct Code, background reading materials, and examples of recently revised student conduct codes from other institutions.
  • Sept. – Dec. 2009: The workgroup met weekly to discuss background materials, best practices, and a philosophy for a revised Code.
  • Jan. 2010 – Jan. 2011: The workgroup met bi-monthly, and small writing teams were established around the following categories: philosophy, authority & jurisdiction, process, and appeals/ disciplinary records. A first draft of a new Code was developed, and a revised code website was established to educate the UC San Diego community about the workgroup and to capture feedback about the rewrite process and suggested Code modifications.
  • Jan. – Dec. 2011: Workgroup members conducted consultations with 27 student, faculty, and staff groups to gather feedback on the first draft of the new Code. A second draft of the new Code was developed, informed largely by the extensive feedback captured and by additional deliberation among the workgroup.
  • Jan. – Feb. 2012: Final discussions were held by the workgroup, and UC San Diego Campus Counsel reviewed the second draft.
  • Mar. – Sept. 2012: Final drafts of the Code were developed and training conducted for key constituencies.
  • September 15, 2012: The revised Student Conduct Code is implemented at UC San Diego.

According to Farrington, “the edits made by [the students on the writing] teams and the language in the draft aren’t really reflected in the code.” Also, the latest changes made to the code were apparently not submitted to the committee for feedback, which makes sense if the final drafts of the Code were developed after the SCCRW stopped meeting, as indicated by the milestones listed above. “They have made changes since this draft was approved,” Farrington said. “Frankly, I don’t know where these changes came from in the middle of the year… which I think should serve to highlight the manner in which this code [was] put together.”

This sentiment was echoed by Jon Carlos Senour, who confirmed that changes were made (by whom?) after the final meeting of the SCCRW, although he qualified the statement by saying that some of the changes that Bryce was talking about, such as the ability of students to appeal the administration’s decision to apply the Code to an off-campus incident (discussed in more detail below), were presented to the SCCRW, but that they were subtle enough that they were not noticed. Senour mentioned that the final meeting was held two weeks before finals’ week (Spring 2012), which explains why the students may have missed some of the more subtle changes.

The Purpose of the Code

I approached several sources to get an idea about what the purpose of the changes to the Code were, including current AS AVP of Student Advocacy Courtney Hill, Ben White of the Office of Student Conduct, Jon Carlos Senour of Student Legal Services, and Bryce Farrington. Specifically, I asked them to tell me in their own words what the goals of the new code were; whether this was a routine update of the Code; what relationship these goals had, if any, to the Compton Cookout and other 2009-10 events; and how the changes reflected the goals.

All of their answers were unanimous in two respects; the update was not routine, and the Code was already scheduled to undergo “revision” before 2009. As Ben White explains: “the Code was revised in response to the 2005 Undergraduate Student Experience and Satisfaction (USES) report. The report found that students believed the former code was a cumbersome process of managing student conduct incidents created barriers to timely resolution. Based off this information… Dr. Penny Rue formed the Student Conduct Code Revision Workgroup in May 2009 to review and revise the UC San Diego Student Conduct Code.”

Hill’s and White’s statements stress that students found the old Code too “legalistic” and “incomprehensible to the average student”, and that the old Code was too much of a penal code rather than a tool of education. The Code, they say, was changed to be more comprehensible, less punitive, and involve students more.

Both Senour and Farrington are skeptical of these claims. Senour thinks that the concerns about the old Code being written in “legalese” in the USES survey were mainly the result of student discontent with RSO conduct in prosecuting students for minor violations of campus regulations regarding noise, alcohol, and parties. Furthermore, Senour finds that these terms, “legalistic” and “educational,” say nothing concrete about why the Code was changed.

Farrington had quite a bit to say on the subject of the new Code’s purpose, but before I discuss that, I want to point out that Farrington wished me to stress that much of what he says is strictly his subjective opinion as a member of the SCCRW.

A good summary of his opinion is that the UCSD administration’s public justifications for the changes in the code are dishonest and diversionary.

“The public reasoning is that a survey found the code to be hard to understand and incomprehensible to the average student,” Farrington said. “I think that is definitely true of the old code, although I think the new code is only marginally better in that regard.”

“Second, the administration will tell you that they wanted a code that was less putative and more focused [the] ‘educational process’… [My opinion is that the administration] wants to enforce the principles of community as hard laws, and it wants more power to punish students. Administrators in meetings of writing this conduct code have cited the want to make UC San Diego a much more controlled and subdued campus, and I think that this code fits into that larger goal.”

These claims seemed speculative, so I asked Bryce to tell me how he thought he could have such knowledge of the administration’s motives. Bryce told me that his opinion is derived from dialogue he heard among the staff and faculty the SCCRW Meetings. “I have been in meetings of the committee where members of the committee have stressed that they think that campus should be a quiet campus where students are held to higher standards of conduct than everyone else and that we have a code that keeps the school from being a ‘party school.’”

“The internal/private reason why this code is being changed is because the university has, in numerous times in the past (the Compton Cookout isn’t the only example but it is the most notorious one, but also with the protests last year), found itself unable to do as much as it would like to respond when something happens.”

Seeing that off-campus jurisdiction of the Code was a lively battleground during the drafting of the new Code, and seeing that there is a new section about enhancement of punishment in cases where misconduct occurred “because of [the complainant’s] membership… or perceived membership in a protected classification” (Section XV, paragraph C), it seems that some of the changes to the new Code were at least in part motivated by the Compton Cookout (which occurred off-campus), notwithstanding the denial of such influence from the administration and the Office of Student Conduct.

Points of Praise

Although there are things in the new Code that upset Farrington, Senour, and Courtney Hill, and myself, and likely anyone else who reads both versions of the Code, there were some notable improvements.

The first improvement is the inclusion of Section II, which is a list of definitions of the terms used in the Code. This clears up some of the ambiguity in the last Code.

A second point of praise, although not an area of improvement, is that the new Code does not enhance the University’s jurisdiction in off-campus incidents of misconduct. Both Farrington and Senour said that earlier drafts of the new Code radically increased this jurisdiction, and that the AS resolution and Senour’s complaints were necessary to restore it to it’s previous restrictiveness. Of note is the fact that in the second-to-last draft, respondent students could even appeal the decision to extend jurisdiction of the Code to off-campus events, but that disappeared in the last draft. Senour said that the provision was pulled from the Code because it was found that instances in which off-campus jurisdiction was employed were too rare to warrant that much protection, and that there was also confusion about which campus agency would hear that appeal.

A third area of improvement that isn’t apparent from the old or new versions of the Code, according to Senour, is that Ben White (Office of Student Conduct) is training the Deans of the Colleges on how to correctly implement the new Code. Apparently, Deans were previously unaware of certain protections entitled to students who had been accused of misconduct, such as the right to seek an AS Student Advocate, Attorney, or other student or non-student Advisor to help them understand their rights during the proceedings and the proceedings themselves. The Deans are supposed notify accused students of such rights before proceedings begin, and it is now more likely that this will happen.

Unsettling Details Part I: Free Speech

There were two details about the code that I mention in the article which are particularly alarming. But first I will mention a third issue, which is not so important as the other two, but still noteworthy.

In the old version of the Code, the first violation reads as follows: “All forms of non-academic dishonesty, including, but not limited to, fabricating information, any form of bribery or knowingly furnishing false information or reporting a false emergency to University or UCSD officials acting in the performance of their duties[, are prohibited].” (The addition at the end is mine, but it is clear in the context of the Code that this was it’s meaning.)

Here’s the new version: “Non-academic dishonesty including, but not limited to, fabricating information, furnishing false information, or reporting a false emergency to the University[, are prohibited].”

First, we have lost the protection of ignorance. If a student makes these actions in good faith, ie, believing that they have given accurate information, they can still be held in violation of the new Code.

Second, if the violations are not limited to those actions, what else is included?

Third, due to the ambiguous grammar, this can be interpreted in two ways. Obviously, reporting a false emergency is only a violation when it is done to the University, which makes sense. But what of “fabricating information or furnishing false information”? Is it only a violation when it is directed at the University, or is it a violation in any context? It’s hard to tell, although if we assume that the writers were reasonable, we can assume that it only applies in the context that the information is being applied to the University.

This prohibition could be better written as follows: “Knowingly furnishing false or fabricated information to the University or UCSD officials acting in the performance of their duties, or knowingly reporting a false emergency to the University[, is prohibited].”

Unsettling Details Part II: Hazing in Athletics

Shortly before publishing this, Senour brought to my attention a minor issue involving the regulations on Student Organizations and hazing. I’ll let his words describe it:

“I realized this past week as I was putting together a presentation on hazing that under the old Code, it applied to all campus/student organizations, whereas under the new Code it only applies to “Student Organizations”, which is defined as “a group of undergraduate and/or graduate students who are recognized as a college student organization by the Dean or Provost of their respective college or who have successfully registered as a student organization with the Center for Student Involvement.” To my knowledge, the UCSD athletic teams are not “Student Organizations” as defined, so it could be reasonably argued (though probably unsuccessfully) that UCSD athletic teams could not be disciplined for hazing. I pointed this out to Ben White, and we both agree that it is a technicality, but one that could have been avoided!”

Unsettling Details Part III: Student Conduct Proceedings

Now, onto the other concerns. One is with the new Student Conduct Process. In the article complementary to this post, I go into detail about problems having to do with shortened time limits that students must comply with during the proceedings, the loss of the option to change a plea after an Administrational Resolution meeting, and the fact that the formal proceedings are always closed to the public. In this post, I look at certain concerns that Farrington had about the composition of the Community Standards Boards, which are the equivalent of the old Campuswide Judicial Boards, and the changes to the guidelines concerning Student Conduct Reviews, which are the purview of the Community Standards Board.

In the old Code, the composition of the Campuswide Judicial Boards was composed solely of students, all of whom were either members of the Judicial Boards of each of the sub-colleges on our campus or Graduate Students from the GSA. Staff and Faculty merely played the role as advisors and recorded the proceedings. While these students are still included on the Community Standards Boards, they now sit beside staff and faculty. The composition of the entire board is as follows:

  • Two students from each of the six Colleges
  • Six Graduate Students
  • Six Staff/Faculty.

To be clear, this is the pool of people from which people can be selected to participate in Student Conduct Reviews. For an individual case, the Hearing Board now consists of:

  • Three students
    • If the accused student is an undergraduate, two of these must also be undergraduates
    • If the accused student is a graduate, two of these must also be graduates
  • Two staff/faculty.

“This is much closer to how we do Academic Integrity at UCSD, which is a pretty unfair system,” Farrington said. “Faculty and staff have say over the enforcement of a code that does not even effect them. One can argue that faculty and staff are sometimes more lenient on students than their peers are, but in a lot of cases, I think it leaves a lot up to [the administration to decide] who in particular sits on this board.”

“In a slight tangent, I think it needs to be said that even in the cases of students, and especially in the case of faculty, the determination of responsibility in these reviews is made by people who VOLUNTEER to go to cases. This creates a response bias in the “jury” which should not exist, and it’s why in criminal cases you see juries selected with more randomness. I think the Community Standards Board increases this bias.”

Furthermore, according to Farrington, the rules that guide the Student Conduct Review have been shortened from about 6 pages in the old Code to about 4 pages in the new one. “The old code’s standards for the administrative process, from citations to hearings to appeals, were written more like penal code in the sense of legal proceedings that we are used to in legal matters, whereas the new code is more ambiguous and less defined.” Although this is in line with the goal of making the Code “more comprehensible” and “less legalistic,” Farrington thinks that these characteristics can offer further protection to the students, and as long as they have access to a student Advocate who is versed in the particulars of the Code, it shouldn’t be an issue.

Unsettling Details Part IV: Interim Actions

Finally, the most disturbing changes occurred to what were formally called “Interim Sanctions” in the old Code. This is one of the aspects of the AS resolution described above that was not addressed by the SCCRW in the final draft of the new Code. These are sanctions that are imposed by a Dean or the Vice Chancellor of Student Life if “a Student or Student Organization’s participation in University-Supported Activities, use of University resources, or presence on University Grounds and Facilities is reasonably likely to lead to physical harm to any person or property; threats of violence; conduct that threatens the health or safety of any person; or other disruptive activity incompatible with the orderly operation of the campus.”

As I detail in the article complimentary to this post, these Sanctions exhibited three frightening characteristics: The administration can impose them on students before formal conduct proceedings have occurred; they can be imposed even if the respondent is not responsible for the “physical harm,” “threats of violence,” etc, but merely if their conduct is “likely to cause” it; and they can be imposed for any activity which somehow fits the vague criterion of “disruptive activity incompatible with orderly campus operation.”

The new Code does nothing to assuage these concerns. Interim Sanctions are replaced with Interim Actions, which can be applied under the exact same circumstances and for the exact same reasons. But they now include “any other sanction authorized by [the new Code],” (Section XVI, Paragraph A) including dismissal from the University. (It should be noted that this language is in conflict with the definition of an Interim Action in Section II, which limits Interim Actions to “Interim Suspensions, separation of parties, and changing of class schedules.”). In the old Code, Interim Sanctions only included “exclusion from classes, or from other specified activities or areas of the UCSD,” and suspension from campus in severe cases.

Furthermore, while there is a process by which someone who is sanctioned on an Interim basis can contest this sanction within 24 hours of their notice, it can only be invoked when this sanction is a suspension, in which case they are entitled to an “Interim Suspension Hearing.” It is as if this section was copied from the old Code and pasted into the new Code without consideration for the fact that Interim Actions now include penalties other than suspensions.

Also, in the old Code, it was specified that Interim Sanctions were to be exercised “to the minimum extent necessary,” to prevent the violence, threats of violence, etc. This restraint is now absent from the language of the new Code.

Re-Evaluation of the Code is Necessary

As I mentioned earlier, the other concern that was not addressed by the AS resolution was there is “no clear process for students to address grievances with particular policies and actions of the administration when administering the Conduct Code.” In an email sent out by Ben White last Thursday, September 27th, it is said that the Code lays out “a regular evaluation of the Code, including opportunity for timely revisions.” I can find no corresponding sections of the new Code where these “regular evaluations” are detailed, ie, when they happen or how often, the process that guides the evaluations, or anything else. But these concerns mean that we need to schedule a re-evaluation as soon as possible anyway, these concerns need to be communicated to the Office of Student Conduct and the Vice Chancellors of Student Affairs and Student Life as soon as possible. If the Code doesn’t specify how, we’ll have to make ourselves heard by our own means. Another AS resolution, anyone?

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9 comments

  1. Courtney Hill · ·

    Another resolution in response to the Conduct Code was passed by the ASUCSD this past Wednesday. It should be posted to the AS website in the next few weeks, but if you’d like a copy, I’ll send it your way!

  2. I am currently experiencing the Sanctioning Process of this new Student Conduct Code and am willing to be interviewed/quoted regarding my experiences with it.

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