UA Codes and Judicial Committee

Current practice described in Krause Report

Very formal with many features of criminal justice system.

Proposed practice in Krause Report

Recast entire process to be more educational in approach, while still ensuring fundamental fairness to the accused and insisting upon accountability for those responsible for violations.

The Krause report concludes that “legal formality does not best serve the University’s educational mission.” This is a perplexing conclusion from a report authored by an individual with a law degree. While the campus judicial system exists within an educational community, its purpose should be seeking truth and justice. Campus judicial proceedings should not lose sight of the individual students involved in the proceeding by striving to promote vague “educational objectives.” The adversarial legal system employed in most American courts is not perfect, but we do have a belief that through such a process, we can achieve just results. An emphasis on a more “conversational” proceeding, beyond being a vague mandate, seems to emphasize informality above the main purpose of the proceedings.

The formalities of legal procedure plays a very important role in insuring consistency, which is a key component of fairness. Done properly, they can also be very effective in assuring that important aspects are not overlooked. Formal procedures also are important in demonstrating the seriousness of the hearing to the accused. I do not see what educational aim is served by dismantling formal procedures.

As a current member of the Hearing Board I can relate that we continually struggle with having a process that is fair to all concerned while not having process that is overly formal. Yes, the current process has some elements of other legal processes, but it is also very different from what happens in civil or criminal courts. All judicial systems will have formal processes. If there really are better ways, then give CJC your ideas. The current system allows for such community input. The system favored by the administration seems not to be.

It is too easy to equate formality with obsolesence. Instead, as other commenters have noted, formality in these proceedings plays a valuable role in ensuring clarity and consistency.

I agree with the emphasis on due process, including formal protections.

With regard to the Hearing Board and Review Board panels, I think they should be kept the way they are. This issue is closely tied up with the independence of the judicial process, as Ms. Krause’s recommendations regarding those panels make clear. So, not being sure whether you want to see a duplicate of a long post of mine, I refer you to my remarks under “Independence of Judicial Process” on that point.

With regard to the step-by-step procedures of individual hearings and appeals, I’m willing to grant that procedure can beyond a certain point become a straitjacket, especially in light of the educational purpose of the proceedings. However, I consider it important for due process that everyone know in advance how a given hearing or appeal will be conducted, and also that important rights such as confrontation of opposing witnesses be retained.

That having been said, I agree with Ms. Krause’s recommendations advisors should not present respondents’ defenses for them or question opposing witnesses. I feel that respondents should do these things themselves, as part of their educational experience. (You may want to see my detailed remarks under “Attorneys and Advisors”.)

Indeed, I am puzzled as to why Ms. Krause does not also recommend that complainants generally present their own accusations, on the same grounds. I for one am not convinced by the Krause Report that complainants should be treated differently from respondents in that respect.

I think that there is significantly more room for the educational approach in the penalty phase of hearings, when an accused student who has been found responsible is invited to reflect on the effects of his/her actions, and how s/he can make better decisions in the future.

Of course, there is also a place for educational concerns when deciding on whether an accused student is responsible, and on the merits of an appeal, but these concerns must in my opinion be tempered with an emphasis on due process.

Last but not least, Jesse Gillespie has an excellent point: formal hearings make clear to everyone, perhaps especially the respondent, how serious the whole matter is. We just need to make sure that procedure does not overshadow substance.