When is a Hearing Not a Hearing Alternative Approaches to Addressing Student Misconduct

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When is a Hearing Not a Hearing? Alternative
Approaches to Addressing Student Misconduct

• Legal Issues in Higher Education 14th Annual
  Conference
• October 24-26, 2004
• The University of Vermont
• Burlington, Vermont

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• Presented by
• Nancy Tribbensee, J.D., Ph.D.
• Associate Vice President for Legal Affairs,
  Arizona State University
• Anne L. Leavitt, Ph.D.
• Vice President for Student Affairs and
• Dean of Students, University of Oregon
• Laura Blake Jones, Ph.D.
• Associate Dean of Students and
• Director, Office of Student Life, University of
  Oregon
• Facilitated by
• Robert Kelly, Ph.D.
• Associate Dean of Student Affairs, The University
  of Vermont

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Historical Framework and Relevant Case Law

• Supreme Court decisions
• History and evolution of traditional models
• State statutes that also impact models (Arizona)
• Trends impacting the implementation of
  traditional models

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Strengths and Limitations of Traditional Models

• Strengths
• Demonstrate attentiveness to community standards
  and behaviors
• Use judicial processes that support resolution in
  a fair and reasonable manner
• Provide all parties with opportunities and
  procedural fairness
• Provide consequences for students found in
  violation of institutional standards
• Allow for participatory governance through
  involving faculty and students

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• Strengths (continued)
• A just punishment can be therapeutic
• Facilitate ethical dialogues in an educational
  setting
• Employ clear language
• Include informal as well as formal procedures
• Recognize that authority for student discipline
  is vested an delegated
• Framed by investigatory rather than more
  adversarial models
• Allow for fair evaluation of accused students
  responsibility for violating university
  requirements, usually without using formal rules
  of evidence required in criminal proceedings

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• Limitations
• Even when processes are not established within
  the strictest legal framework, legalism and
  proceduralism can make proceedings so adversarial
  that the educational purposes of judicial
  programs can be lost
• Promote a winner and loser scenario by setting
  students as antagonists with each other or with
  the institution. Traditional models have the
  perspectives of an accused with a point of view,
  an accuser with a point of view, and a hearing
  officer or body that has to make a decision
  between them
• Do not always distinguish, in the level of
  formalism or process, differences among campus
  rule violations, infractions against campus
  community standards and more serious criminal
  behaviors

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• Limitations (continued)
• Can limit opportunities to apply institutional
  standards to individual cases in ways that
  enhance ethical development by providing
  interventions that represent learning outcomes
• The capacity of the student or faculty member to
  participate and take responsibility in the
  process can be reduced by its perceptual or
  actual legalism of the process
• Students are apt to respond to charges by
  challenging, denying, or getting representation.
  Students resistance to working with the judicial
  office or institutional representatives increases
  
• Timeliness can be compromised by the adversarial
  nature of hearings which encourage strategies
  of procedural delay

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• Limitations (continued)
• Appeal processes become very formalized with
  limited options when one party or the other
  disagrees with how a case has been handled or
  what the decision is
• Excessive legalism can get in the way of
  educational effectiveness as the educational
  needs of the various parties are assessed by the
  same agents who are describing alleged offenses,
  charging alleged offenders, and managing the
  procedural issues
• Do judicial affairs programs overly rely on
  fairness in assessment of the effectiveness of
  their conduct programs?

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Alternative Approaches to Student Conduct

• Undertaken within informal processes of
  traditional models
• In keeping with educational purposes
• In response to specific type of infractions
• Disciplinary conferences used on many campuses
• Choices of informal or formal resolution paths

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• Use of a wide range of creative sanctions within
  informal disciplinary proceedings
• Use of community or peer-based judicial boards
  for infractions impacting a specific community
  (residence halls, Greek chapter houses,
  cooperative living environments, etc.) where
  alleged infraction had a direct impact on the
  community (noise violations, vandalism, etc.)
  Example UO Restorative Justice Program

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• Substance abuse infractions often result in
  referrals to/for
• individualized treatment
• diversion courses (on or off campus)
• on-line, high-risk-use assessment tools
• Motivational Interviewing interventions
• Social Norms interventions

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• Bias related incidents that do not technically
  violate campus conduct codes or city/state
  statutes may be referred to a Bias Response Team
  for informal resolution.
• These teams offer
• Support to the targeted or harmed individual(s)
• Educational interventions with perpetrators of
  inadvertent or intentional bias and members of
  the general community
• The ability to monitor the frequency of
  bias-related behavior in a community

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Restorative Justice as a Nontraditional Approach
to Student Conduct at the University of Oregon

• Experts on restorative justice
• Michael Umbreit (see bibliography)
• Howard Zehr The Little Guide to Restorative
  Justice
• Principles and practices are derived from faith
  communities
• UOs program modeled after University of Colorado
  at Boulders
• Zehrs umbrella set of principles can be put to
  use in a variety of ways victim/offender
  mediation, family group conferencing, and
  community circles

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• Restorative Justice principles, as defined by
  Zehr (2002), state that
• Crime is a violation of people and of
  interpersonal relationships
• Violations create obligations
• The central obligation is to put right the wrongs

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• Ten Signposts of Restorative Justice
• Focus on the harms of crime rather than the rules
  that have been broken.
• Show equal concern and commitment to victims and
  offenders, involving both in the process of
  justice.
• Work toward the restoration of victims,
  empowering them and responding to their needs as
  they see them.
• Support offenders, while encouraging them to
  understand, accept and carry out their
  obligations.
• Recognize that while obligations may be difficult
  for offenders, those obligations should not be
  intended as harms, and they must be achievable.
• Provide opportunities for dialogue, direct or
  indirect, between victim and offender as
  appropriate.
• Find meaningful ways to involve the community and
  to respond to the community bases of crime.
• Encourage collaboration and reintegration of both
  victims and offenders, rather than coercion and
  isolation.
• Give attention to the unintended consequences of
  your actions and program.
• Show respect to all parties victims, offenders,
  and justice colleagues.

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• Restorative Justice as Applied at the University
  of Oregon
• UOs initial experience with this model
• Obtaining campus buy-in and support
• Familiarizing student affairs staff with RJ
  concepts
• Answering questions and overcoming concerns
• Recruiting and training RJ process facilitators
• Facilitating first RJ cases
• Doubling back to ensure the flow of RJ cases
• Looking forward to our second year

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• Implementation structure within conduct process
  at the UO

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• Overview of restorative justice circle process
• RJ Circle Process Outline
• RJ Community Circle Agreement

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Community Circle Agreement Date
____________________ Facilitators
_______________________________________________ Of
fender _______________________ Offense
______________________________________ Harmed
Party(ies)_______________________________________
____________________ Other circle
participants ____________________________________
__________________________________________________
__________________________________________________
________ To repair the harms caused by the
incident, _________________agrees to
In the event that all of the above items are not
completed by (date) ________________ then the
case will return to Office of Judicial affairs
for further action. Signatures __________________
_______Date_______ _________________________Da
te________ _________________________Date_______
_________________________Date________ ________
_________________Date_______
_________________________Date________ ___________
______________Date_______ ____________________
_____Date________ All letters of apology,
payments of restitution, proofs of completion of
community service, etc. are to be sent to the
Office of Student Judicial Affairs, 164 Oregon
Hall, 5216 University of Oregon, Eugene, Oregon,
97403. All payments should be in the form of
check or money order. If the agreement cannot be
met, contact the case managers IMMEDIATELY at
[phone].
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• Cost of developing and implementing RJ program at
  the UO
• Lessons learned/evaluation of initial campus
  experience

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Looking Ahead Emerging Trends, Changing Issues
and Environmental Influences

• Additional applications for Restorative Justice
• Recent findings on the value of an apology in
  preventing medical malpractice suits
• Application of RJ principles within Bias Response
  Team educational interventions at the UO
• Growing number of academic integrity cases and
  possible alternative approaches for responding to
  this type of infraction
• Evolving computer misuse, Internet piracy cases
  involving external and usually remote from
  campus-injured parties

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General Question and Answer Period