From declanm@netcom.com Sun Oct 8 12:26:01 1995 Return-Path: Received: from po6.andrew.cmu.edu by mail4.netcom.com (8.6.12/Netcom) id MAA15611; Sun, 8 Oct 1995 12:21:58 -0700 Received: (from postman@localhost) by po6.andrew.cmu.edu (8.6.12/8.6.12) id PAA01909; Sun, 8 Oct 1995 15:19:31 -0400 Received: via switchmail for fight-censorship+@andrew.cmu.edu; Sun, 8 Oct 1995 15:19:27 -0400 (EDT) Received: from po5.andrew.cmu.edu via qmail ID ; Sun, 8 Oct 1995 15:17:22 -0400 (EDT) Received: from netcom19.netcom.com (netcom19.netcom.com [192.100.81.132]) by po5.andrew.cmu.edu (8.6.12/8.6.12) with ESMTP id PAA07681 for ; Sun, 8 Oct 1995 15:17:12 -0400 Received: by netcom19.netcom.com (8.6.12/Netcom) id MAA12056; Sun, 8 Oct 1995 12:16:20 -0700 Date: Sun, 8 Oct 1995 12:16:19 -0700 (PDT) From: D B McCullagh Sender: D B McCullagh Reply-To: D B McCullagh Subject: CMU's Academic Disciplinary Process To: fight-censorship@andrew.cmu.edu Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; CHARSET=US-ASCII Status: RO X-Status: Yesterday I forwarded a copy of CMU's new degree-withdrawal policy. The relevant administrator here is Mike Murphy, dean of students. His office is responsible for producing the student handbook that included the new degree-withdrawal policy, enforcing the policy, and taking disciplinary action against Rimm if the Committee of Investigation finds him "guilty" of any of the charges. The president of CMU delegates this authority to the dean of students. Attached is a brief overview of the dean of student's disciplinary authority. The excerpt talks about disciplinary proceedings (drugs, alcohol, fistfights) instead of academic ones (cheating, transcript falsification), but it still might be interesting. Murphy is the final factfinder and judge in both academic and disciplinary matters. The difference between academic and disciplinary actions at private universities is that courts are reluctant to intervene in decisions involving grades, academic evaluations, and so on. The Supreme Court said in Board of Curators v. Horowitz (1978): "Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full hearing requirement... Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not really adapted to the procedural tools of judicial or administrative decision making." New York's highest state court in Susan M. v. New York School (1990) said that involving the court in academic and educational decisions was inappropriate and "beyond the scope of judicial review." For a student to obtain relief, there had to be "demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation." So *if* CMU revokes Marty's degree or takes other action against him and as long as they follow their internal policies in a reasonable manner, Marty doesn't have much of a chance in court. But CMU hates to be sued... -Declan ( Forwarded Message Begins Here ) ----- CMU Disciplinary Process ----- The history of Carnegie Mellon University's political correctness dates back to at least 1989. In that case, a student who was granted permission to burn cotton fabric on the campus lawn had her permit forcibly rescinded by Campus Security when the administration learned that the "cotton fabric" was an American flag. In another case, a student was threatened by the Office of Student Affairs for his allegedly "offensive" posts to an electronic newsgroup devoted to student political discussion. But the modern era of free speech repression started when deputy housing director Michael Murphy became Dean of Student Affairs. His rise to dean coincided with University of California engineering dean Robert Mehrabian's installation as president of CMU in 1990. Ever since, the two have enjoyed an intimate working relationship, with Mehrabian directing Murphy to manage the student body. With a nose to the prevailing winds of political correctness and an eye to increasing his power base, the dean overhauled the campus disciplinary process in the early 1990s and since has used it to punish outspoken students for their political speech. Murphy's moves did not go unrewarded. His power structure has increased steadily, with more and more areas of student life moving under his direct control; last summer, the student career center moved into the division he heads. Murphy employed his presidential carte blanche to transform the disciplinary process into a system that would suit his and Mehrabian's needs. He created one process for disciplinary charges and another for academic charges such as cheating, while retaining ultimate control of the outcomes of both proceedings. The new system allowed him to chair academic boards and appoint disciplinary board moderators who follow his instructions. By ensuring that all disciplinary trials are conducted in secret, shredding all evidence afterwards, and refusing to confirm the existence of any disciplinary trials, the dean has been able to enforce campus political correctness. ----- No Checks and Balances ----- The United States criminal justice system is set up to provide a series of checks and balances to maximize the neutrality of the people involved. The investigation is conducted by the police, who identify those breaking rules but do not bring the case to trial. The district attorney, who decides who should be charged, is checked by the defendant's lawyer and the ballot box; the judge sets fact-finding procedures and agrees who should be charged; the jury decides if the individual is guilty as charged. The judge's power is checked by the appeal process, and there are rules prohibiting anyone from becoming involved if they may have a conflict of interest with or substantial prior knowledge of the defendant. In CMU's restyled disciplinary system, Murphy hears the charges, investigates the charges, meets with the student about the charges, and then chooses people from a pool to sit on the University Committee on Discipline (UCD or UDC), which reviews the charges and makes a nonbinding recommendation to him. Murphy then makes a final decision on the outcome of the charges he allowed to be initiated. Translated into the terms of the criminal justice system, the dean serves as the police officer, the district attorney, the grand jury, the judge, and the jury. When one person plays so many different roles, the checking so central to the fairness of the criminal justice system is absent. Combining all the roles of the public court into one administrator means that his judgement likely is biased: [Picozzi, James M. "University Disciplinary Process: What's Fair, What's Due, and What You Don't Get," The Yale Law Journal, Vol. 96:2132,1987.] * A person who initially decides a student should be charged has a predisposition to find him guilty of that charge. * The ability of an institution to survive, let alone prosper, depends upon its public image. Of all potential biases against an adjudicator, financial interest is recognized as the greatest temptation. Consequently, when faced with a student disturbance, an administrator may not be thinking as an impartial judge - he is most likely thinking of what is best for the institution at the expense of individual justice, or acting as a bureaucrat protecting his job. * An administrator may have substantial prior knowledge of a student but still is allowed to sit in judgement. In a criminal court, the mere likelihood of influence will disqualify a judge or juror. * The administrator may have had a hand in the development of the conflict that led to the disciplinary charges - through an action that caused the conflict or by not resolving the conflict earlier. Dealing fairly with a student may cause him to contradict his own previous judgements. * Once a student is charged, a full-fledged adversarial relationship exists, and university officials are like everyone else. They play to win. However, the law recognizes a university cannot emulate the public court system in every detail. Some conflicts of interest are inevitable. Because of limited resources, it is unreasonable to assume that a university will afford students every protection they have in a public court. Yet courts have determined that some procedural safeguards are necessary: * Campus judges and juries must exercise independent judgement. [Lisa L. Swem (1987). "Due Process Rights in Student Disciplinary Matters." Journal of College and University Law, 14(2):359-382, p.371)] * Administrators may not act arbitrarily, capriciously, unreasonably, or in bad faith. [Harvey v. Palmer College of Chiropractic, App., 363 N.W.2d 443] * Proceedings must be fundamentally fair with impartial adjudicators. [Marshall v. Maguire, 424 N.Y.S.2d. 89] * Hearings must be basically fair. [Cloud v. Trustees of Boston University, C.A.Mass., 720 F.2d 721] * Due process requires that hearings be held before impartial decisionmakers. [Lyness v. Commonwealth State Board of Medicine, 605 A.2d 1204 (Pa 1992)] Instead of trying to insulate the decision-maker from bias, Murphy and Mehrabian decided not to increase, but to reduce the procedural safeguards for their students. Surely if a system was intended to be fair in any way, the dean could have found some faculty members or administrators to share his role - which should not be difficult, on a campus of over 10,000 people. Such procedural safeguards are especially important given the value of a student's educational investment. If a student is suspended or expelled, any subsequent university to which the student may apply will be informed of the reasons for his prior dismissal. Unlike an employee who may leave a position at will, universities presume that, absent some behavioral or academic failure, the student will continue to graduation. To be dismissed from a university means the student can never again be a candidate for any degree. When the potential harm to a student is totaled - lifetime impairment of economic mobility, lifetime prohibition from higher education, and a public belief that he has done something wrong, perhaps even committed a felony - the penalty for dismissal from a university for disciplinary reasons resembles the suspended sentence a felon might receive for a life-threatening crime. [Picozzi, James M. "University Disciplinary Process: What's Fair, What's Due, and What You Don't Get," The Yale Law Journal, Vol. 96:2132,1987.] By allowing Murphy's arbitrary system to exist, Mehrabian permitted the same dean who acts as a university spokesperson on student issues - and who is concerned with public relations and fundraising - to be the sole arbiter of a student's fate. Instead of ensuring due process, the president and the dean mutated the disciplinary system into a weapon that would keep students in line and ensure political correctness. While the blatant circularity of this process would be perceived as inimical to fairness in any conventional setting, it remains the standard for judicial review at Carnegie Mellon University. ###