Tag Archives: misconduct

Misconduct Hearings on Campus Are Rotten and Have to Change

This is the text of a speech given March 28, 2012 at a Manhattan Institute luncheon in New York City.

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silverglate.jpgI began representing students in 1969. A group of Harvard students took over University Hall in an anti-Vietnam War protest. There was a lot of violence, President Pusey called in the police, and 220 students were charged with trespass on the property of the President and Fellows of Harvard College. My law partners and I took the case, and they tried them in groups of 20 students at a time. Much to the consternation of the President and Fellows, and the district attorney of Middlesex County, the jury said not guilty to the first group. So they gave up the rest of the cases. They figured if the jury wouldn’t convict the first 20, they’re not going to convict the rest.

And that got me interested in this whole area. And two years later,
in 1971, I had my first student disciplinary case in front of the now
feared Harvard Administrative Board. That’s the disciplinary body. And
it was a rather interesting case, and I want you to see where I’m
coming from, what I experienced at the beginning of my career. And then
I’ll tell you a little bit about the last 20 years.

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‘Feelings’ as the Measure of Student Misconduct

Two of our best writers here at Minding the Campus, KC Johnson and Harvey Silverglate, spoke quite brilliantly at a Manhattan Institute luncheon last Wednesday on “Kangaroo Courts: Yale, Duke and Student Rights.” It is, in our opinion, the best possible short course for understanding the star-chamber proceedings that students face these days at campuses great and small. Duke, we should say, mostly got a pass. Outrages at Harvard and Yale were center-stage.

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Stanford: Guilty Even If Innocent

At Stanford, according to the “alternative misconduct review process” guidelines offered on the university’s website, a student accused of sexual misconduct doesn’t have the right to cross-examine his accuser–or any other witnesses in his case. He cannot offer exculpatory evidence on his behalf, but can only “request” that the university’s assigned “Investigator contact individuals who are witnesses to an event.” (Even then, the Investigator “is not obligated to meet with every individual proffered by the responding student.”) If acquitted by the campus judicial process, his accuser can appeal the acquittal. Even if the acquittal is upheld on appeal, he can still face what Stanford euphemistically terms “non-disciplinary actions,” including “removal from a position of trust or removing a student from housing.”

And, as a result of the recent OCR Title IX missive, he’s lost what was virtually his only due-process protection–that a conviction will result only from “beyond a reasonable doubt.” Instead, he now will face expulsion if found guilty according to a “preponderance of the evidence” (50.1 percent) standard.

What right does the accused student possess? “To be offered reasonable protection from . . . malicious prosecution.” Thanks to FIRE, we now know that even this meager right is meaningless.

FIRE has obtained some of the material that the university uses to train the student jurors (dubbed “reviewers”) who decide the fate of accused students at Stanford. The FIRE website provides excerpts from one such item, Why Does He Do That: Inside the Minds of Angry and Controlling Men. The Library Journal review notes that the book’s author, Lundy Bancroft, has wildly claimed that at least one out of three American women will be a victim of violence by a husband or boyfriend at some point in her life.”

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