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The Chronicle T H E I N D E P E N D E N T D A I LY AT D U K E U N I V E R S I T Y
MONDAY, MAY 1, 2017
WWW.DUKECHRONICLE.COM
ONE HUNDRED AND TWELFTH YEAR, ISSUE 84
‘I’ve not encountered a process...that is less fair’ Legal experts, current and former students criticize the student conduct process
Gautam Hathi The Chronicle
Concerns with Duke’s student conduct process are neither isolated nor new, legal experts and others who have worked on the issue told The Chronicle. “I’ve not encountered a process or an administration of the process in any school that is less fair than the undergraduate conduct board hearings that Duke students go through,” said Robert Ekstrand, Law School ‘98—a Durham lawyer who was involved in the lacrosse case and has worked on hundreds of disciplinary cases involving students at Duke and institutions across the country. “If I was a wrongly accused student, it is the last hearing process that I would want to have adjudicate my case.” Current and former Duke Student Government members who have worked on the student conduct policy told The Chronicle that there are problems both with the student conduct process and the outcomes resulting from it. The Chronicle gave Stephen Bryan, associate dean of students and director of the Office of Student Conduct, an opportunity to respond to some of the specific statements and allegations in this story. This included statements about the overall fairness of the student conduct process, the exclusion of important evidence and experts from hearings, the lack of clear evidence for panel findings, advice from OSC for students to avoid getting a lawyer and the inability of the process to produce reliable outcomes. He declined to comment. James Coleman, John S. Bradway professor of the practice of law, said that in his time at Duke, he has watched the student conduct process closely and has seen similar issues recur. Coleman is co-director of the Wrongful Convictions Clinic at Duke and chaired the Lacrosse Ad Hoc Review Committee, which was convened by President Richard Brodhead during the 2006 Duke lacrosse scandal to investigate the behavior of the lacrosse team. He was also a member of a task force put together in 2007 to review the student conduct process. “My view is that Duke’s whole disciplinary system needs a review,” said Coleman,
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Jeremy Chen | The Chronicle
This is the second story in a multi-part series on the student conduct process. The first story, published last week, examined the experience of one student who went through the student conduct process and felt that she was treated unfairly. If you have had experiences with the Office of Student Conduct that you would like to share with The Chronicle in a confidential manner, please contact Claire Ballentine or Neelesh Moorthy.
a faculty advisor to sophomore Ciaran McKenna, who is currently contesting in court how OSC treated his case. McKenna was found responsible by two hearings panels for sexual misconduct and was suspended for six semesters. A Durham judge has added to the criticism of the student conduct process during ongoing litigation involving McKenna. Superior Court Judge Orlando Hudson ruled that McKenna’s lawyers would likely be able to show in a trial that McKenna’s hearings were “fundamentally unfair.” As a result, McKenna won an injunction against the University allowing him to continue taking classes while his case proceeds. Procedural questions Coleman and Ekstrand singled out the undergraduate conduct board process as particularly unfair. Students and faculty sit on conduct boards, which adjudicate more serious accusations of Community Standard violations and determine sanctions for students found responsible. Students can appeal conduct board findings on procedural grounds to appellate panels, which usually consist of administrators. Ekstrand noted that problems in the student conduct process are
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concentrated in the conduct board process. The same is not true of Duke’s appeals system, which is separate from OSC and has overturned some of the most egregious decisions, he said. “I think the investigative reports tend to be incomplete,” Coleman said, referring to the documents about a case that are given to conduct boards before a hearing begins. “[OSC doesn’t] always interview all of the witnesses. They don’t subject the people they interview to probing interrogations.” In addition, Coleman noted that he has seen other cases—besides the one profiled by The Chronicle last week—in which the University has been reluctant to include potentially relevant evidence in proceedings. “I have asked the University to pursue additional evidence, in some cases after I have gone out and talked to people who have some expertise—that is, people within the University who should be consulted on these issues—and they have basically not been willing to do that,” he said. Ekstrand brought up the unwillingness of OSC to hear from outside experts as another problem with the system. “It is often very hard to get evidence presented at a hearing from anybody other
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than the accused. OSC panels do at least let the accused speak and do what they can do on their own,” he said. “But if a student needs to bring in an expert or fact witnesses, it’s a toss-up as to whether the panel will allow it. And that is rarely decided in advance. It’s always, ‘The panel will decide if they want to hear it at the hearing.’” Ekstrand also noted that there is no mechanism in Duke’s process for students to submit excluded expert testimony. This would enable students to create a record that the appeals board could later review to evaluate the hearing panel’s decision to exclude the testimony. In court cases, recording evidence away from a jury so that its relevance can be reviewed on appeal is standard practice, Ekstrand explained. “Some of the most powerful evidence has been the most likely to be excluded in these cases,” he said. “The decisions appear thesis-driven. They seem to further an interest in avoiding a record that’s difficult to find responsibility on, rather than finding the truth of the matter. Usually, the decision to exclude evidence is not explained, and I can see no other
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