by Joshua Marxen
UPDATED, May 29
On May 14th, Director of Student Conduct Ben White sent an email to campus faculty and students regarding a new round of proposed changes to the Student Conduct Code. As the California Review reported in October, the Code was revised last summer and was implemented at the beginning of the current academic year. Many of the revisions received criticism from the student body, staff, and faculty for being vague and prone to subjective interpretation and abuse. According to the email, the recently proposed revisions address these complaints. But do these changes really resolve these issues, and does the summary of the proposed revisions accurately represent the changes in the language of the Code?
To the credit of the Office of Student Conduct (OSC), these comparisons are very easy to make, because they have provided access to both the current version of the code and the revised version, with changed sections highlighted and old language kept, but struck out and adjacent to the added language. Furthermore, the document summarizing the changes includes the changed sections of the code, again with old and new language juxtaposed. This is definitely an improvement over what happened last year, when the version of the Code which had been in place between 2004 and 2012 could not be found online until the OSC was notified. Even when it was made available, one had to read through both versions of the code to make comparisons.
Improvements Over the Current Version
Many of the proposed changes are beneficial and necessary. First, hazing is re-defined so that hazing activity, which is prohibited to registered student organizations and fraternities/ sororities, is equally prohibited to athletic organizations, which the previous code did not account for (See Section VII, Paragraph K of the proposed revised Code). Second, graduate student Respondents will now have a resource for finding someone to advise them during their Student Conduct proceedings. (A Respondent is a person who has been charged with a violation of the Conduct Code. See Section II, Paragraph O of the current Code.) Associated Students currently appoints the Student Advocates who help guide undergraduate respondents. Now, the Graduate Student Association will appoint a portion of the advocates.
Other changes codify some of the practices the University already takes when carrying out the Code, but which are not explicitly outlined in the current version. This at least serves to increase the transparency of the process, and the changes themselves seem benign. For instance, records of student misconduct which resulted in suspension or dismissal from campus are maintained permanently, a practice that now has an explicit provision in the Code. Also, it used to be the case that witnesses of alleged misconduct were able to submit written statements if they were unable to show up at a Student Conduct Review. (A Student Conduct Review is the formal process that a Respondent can request to contest their guilt, and have their case heard before a Review Officer or a Conduct Review Board. See Section XII of the proposed revised Code.)
Multiple Respondents – Individual or Collective Punishment?
The current version of the Code has no provisions for what should happen if misconduct results from the coordinated action of multiple individuals (except in the case that the students made that action as members of a registered student organization), and according to the summary of the proposed revisions, such cases have arisen three times in the last year. The fact that they are developing rules for these contingencies is a good thing.
What is troubling is that the proposed changes are not thorough. They leave important questions about this process unanswered. What criteria are used to determine whether a group of students should be given a collective Student Conduct Review, rather than a set of individual Reviews? Do the Respondents get a choice of whether to participate in a group Review, or is this decided by the administration? Are sanctions determined and applied equally for all Respondents, or is each individual given sanctions based on their level of involvement in the incident?
When we reported on the Student Conduct Code last year, one of our most helpful contacts was Bryce Farrington, the Associated Students AVP of Student Advocacy during the 2011-2012 academic year. We asked him about the above issues with cases of multiple Respondents, and he was able to give us an idea of the conventions the University already uses in such cases in absence of explicit guidance from the Code, and thus what conventions the University is likely to continue using.
On the criteria used to determine whether multiple students will participate in the same review: “[An] incident with multiple people who are being accused by the university for doing the same thing at the same time, would be merged into one review. This is usually a good idea because it streamlines the process, but can be broken up if it is very clear that certain students had different levels of involvement in the incident.”
On whether or not students can choose to participate in a group Review: “[The decision to hold a group review] is… made by the Office of Student Conduct when they initially process the case. In my experience, the students have zero say in this matter.”
On whether sanctions are imposed collectively or individually: “I’d say in most cases, the findings of responsibility would be the same for each student, unless there’s some sort of compelling evidence to prove otherwise (the student proves that they were not present at the incident, etc).”
In other words, it depends on the case, but the default is to sanction Respondents collectively, which might not be ideal. It deserves discussion.
UPDATE: Director of Student Conduct Ben White confirms most of what Bryce Farrington says above, but states that in all cases, attempts are made to give Respondents involved in the same misconduct different sanctions based on their level of involvement in the incident.
Another important change was the addition of University Representatives to the group of people involved in a Student Conduct Review – again, the equivalent of a trial for a student accused of misconduct. The University Representative is appointed by the Director of Student Conduct, and has the role of “to present information from the incident report(s) and other relevant documents supporting the alleged violations” and “coordinate the appearance of witnesses supporting the alleged violations and ask questions of the Respondent and witnesses” (Section XIII, Paragraph D of the proposed revised Code).
One wonders who had this role under the old and current versions of the Code. Certainly, someone had to serve as the “prosecution” (although the summary of the proposed changes specifies that the Representative does “not… act as a prosecutor but rather as facilitating the information and witnesses supporting the allegations”). One would presume that the person presenting such evidence would be the Complainant – the person who filed the original charge of misconduct.
However, as Bryce Farrington says, “in most of these cases… there isn’t really a ‘complainant’ as it says in the Code, it’s just the university and the university’s witnesses (which are usually incident reports from RSOs or UCPD).” In such cases, Farrington says, “the role was occupied by the Review Officer.” A Review Officer is an individual who is appointed to conduct a Student Conduct Review if, during the Administration Resolution meeting, the Student Conduct Officer or a Respondent request to have a single individual review their case rather than a Conduct Board. According to Farrington, this is actually the norm: “[few] of these conduct boards were ever assembled… this year, and all the cases [that I know of] that went through review went to a review officer.”
In that context, Farrington says it makes sense to have someone other than the Review Officer take on the role of the “prosecution”.
“Cases that I took under the new code basically had the review officer fill the roles of a judge, jury, prosecutor and executioner (for lack of a better term) which is just plain ridiculous,” Farrington says. “Having someone present who is not involved in the case and presents the University’s evidence and asks questions is good. These are usually college reslife staff, and my experience with them in the past has always been positive. It also creates the dynamic of the review officer being more the arbitrator and not the enforcer.”
UPDATE: Director of Student Conduct Ben White confirms that Complainants still participate in Student Conduct Reviews, but did not specify what exactly that meant. For example, it is not clear that the Complainant presents evidence or witnesses, or cross-examines the Respondent and their witnesses.
Interim Sanctions Revisited
The most important change occurred to the section describing Interim Actions.
Normally, an incident of misconduct is handled in the following order: the Respondent is notified that they have allegedly committed misconduct; the student has an Administration Resolution meeting with a Student Conduct Officer, where they either choose to accept responsibility and sanctions, or request a Student Conduct Review if they want to contest the charges or severity of punishment; a Student Conduct Review is held to determine responsibility and appropriate punishment; the student has an opportunity to appeal the decision of the Conduct Review Board; and sanctions are “assigned”. (In the current version of the Code, sanctions are “imposed”, but this is being changed to “assigned” everywhere in the Code. Make of it what you will.)
With Interim Actions, the sanctions are imposed before Respondents can contest their charges (ie, in the “interim” between the alleged misconduct and a hearing): a Dean determines that a student or organization should be assigned an Interim Sanction; the student is notified that they have been sanctioned; a University Official will affirm or deny the sanction; the student can meet with the Director of Student Conduct to contest the sanction, and the Director decides whether the sanction should remain in place; and then the ordinary process described in the previous paragraph begins (starting with the Admin. Resolution meeting).
The fact that the punishment goes into place before any formal trial occurs is not itself the problem – there are circumstances where it might make sense. The section of the Code dealing with Interim Actions (Section XVI, Paragraph A) lists “Physical harm to any person or property; Threats of violence; [and] Conduct that threatens the health or safety of any person” as qualifying misconduct for an Interim Action.
However, the fourth criterion in the current version of the Code generated controversy at the beginning of this year: “Other disruptive activity incompatible with the orderly operation of the campus.” The proposed change is to add to this line a reference to the UCSD Policy and Procedure Manual’s section on speech, advocacy, and distribution of literature. The reason for this is because initially, students thought that Interim Actions were prone to be abused, and could be used to stifle student protest and other advocacy efforts. Adding the reference increases transparency with respect to UCSD’s speech policy, but it is also worrying that speech and advocacy ranks among “physical harm” and “threats of violence” as worthy of punishment without trial.
Furthermore, the addition of a reference to campus speech codes does not address the other issues with Interim Actions.
First: the Code states that Interim Actions may be used not only when an individual student, student group, or student organization engage in violent behavior, but also when their “participation in University-Supported Activities, use of University Resources, or presence on University Grounds is reasonably likely to lead to” the violence. What does this mean? Students and organizations are subject to penalty for what other students (or staff/faculty) may do in response to their mere presence.
Second: Although an elaborate hearing process is outlined for when the Interim Action is a suspension, there is no similar process for when it is another sanction. This is likely left over from the 2004-2012 version of the Code, wherein there were only “Interim Suspensions.” The current Code failed to adapt to the fact that Interim Actions now include “any sanction authorized by the Code,” and it should be something that the University does not miss a second time around. “Any other sanction” includes dismissal from the University, as well as “Other Sanctions” not specified by the Code (Section XV, Paragraph D, Subparagraphs 5 and 9).
Third: In the 2004-12 version of the Code, Interim Suspensions were to be exercised “to the minimum extent necessary,” (Section 184.108.40.206 of the 2004-12 Conduct Code) to prevent violence, threats of violence, etc. These restraints are absent from the current version of the Code, as well as from the proposed changes. This restraint is necessary, given that the sanctions are imposed before any hearing or trial, and should be reincorporated into the Code.
Conclusion – Speak Up!
While the changes represent a net improvement over the current version of the Code in terms of transparency and a few technical issues that were missed the first time around, the proposed changes do not address the largest concerns with the Code. Now is the time to speak up about these concerns. The Director of Student Conduct, Ben White, is scheduled to give a presentation to the Associated Students this Wednesday, May 29th, about the proposed changes to the Code. Public comment on the Code is being accepted until this Friday, May 31st. The changes will go into effect at the beginning of next year. You are encouraged to attend the AS meeting this week and speak during the public input period, and also to submit your comments and concerns to Ben White at firstname.lastname@example.org.
At this time, Jon Senour of Student Legal Services and Ben White of the Office of Student Conduct have not been available for comment. This post will be updated as soon as possible to incorporate their inputs.
UPDATE: Ben White outlines the following process for changing the Code. First, the Associated Students today were given a presentation on the proposed changes to the Conduct Code, and provided him with feedback. Next, a final draft will be made up and submitted to the Student Conduct Standards Group, and they will provide Ben with more feedback. The Student Conduct Standards Group consists of the Director of Student Conduct, head of Student Legal Services Jon Carlos Senour, representatives from Associated Students and College councils, representatives from the Graduate Student Association, and various deans. After incorporating this feedback, the final draft is submitted to the Vice Chancellor – Student Affairs for final approval.