JUDICIAL AFFAIRS IN HIGHER EDUCATION

Judicial Affairs in Higher Education Carolyn Cristancho Georgia Southern University

JUDICIAL AFFAIRS IN HIGHER EDUCATION

Judicial affairs is an important, but not often discussed, aspect of higher education. Judicial affairs is an area of an institution that oversees the conduct of students. Most often, judicial affairs is seen as an enemy to students. One only needs to utilize the judicial affairs process if he or she faces some sort of disciplinary action; however, judicial affairs encompasses much more than disciplinary hearings. Campus safety, student conduct, and student privacy are also extremely important aspects of judicial affairs. There is a rich history of judicial processes on college campuses and, while issues within the judicial process are constantly being improved, there are still some issues that need to be remedied. A judicial affairs aspect of higher education has been in place since the colonial college era. In that era, the power to oversee student behavior belonged to those in charge of an institution. Most disciplinary action was taken to maintain the prestige of an institution and often had religious undertones (Krapfl, 2011). Into the 1700's, corporal punishment was used to discipline students which created animosity between the students and the administration. Because of this animosity, institutions altered their disciplinary actions away from physical punishment. Instead, institutions used sanctions such as rustification, which involved sending a student into a rural area to live, and degradation, which involved lowering a student's rank in his or her class (Krapfl, 2011). In the late 1700s, students began to speak out against their administrators which led institutions to change their disciplinary processes. In the 1800's, the power shifted from the administration to the faculty. During this century, donations to institutions saw a decline, and faculty were often left with more free time than the institution liked. In order to give the faculty work to do, they were put in charge of maintaining student conduct. Sanctions changed again as fines and suspensions were used as sanctions (Krapfl, 2011). In the mid-1800's, institutions created police specifically for catching criminals on

JUDICIAL AFFAIRS IN HIGHER EDUCATION campus and student committees were formed to oversee any violations in housing facilities. While student committees enabled faculty to focus on their teaching responsibilities, many

institutions had issues with these committees because many cases showed favoritism. As a result, many institutions implemented a veto policy where administrators had the power to veto any decision they felt was unfair or biased. This led to the creation of judicial processes that were student driven but overseen by the administration in the 1900s (Krapfl, 2011). Before the 1960s, the law did not play a large role in judicial affairs. One court case changed that. In the 1960, six students were expelled from Alabama State College for refusing to leave a public lunchroom. The students were not given notice of their expulsions, nor were they given an opportunity to explain themselves. They were also not told why they were being expelled before they were removed from the college (Dixon, 1960). This case, Dixon v. Alabama State Board of Education, created the framework for giving United States law a hand in judicial affairs. After this case, it was determined that institutions were required to give accused students a hearing and a notice on the charges against them (Dixon, 1960). As a result of this case, institutions began to formalize disciplinary processes to protect themselves from liability (Krapfl, 2011). Perhaps one of the most influential events that changed the judicial process was the implementation of the Federal Education Rights and Privacy Act, or FERPA. FERPA was passed in 1974 and its intention was to protect student's educational information (Reinhart-Thompson, 2009). Under FERPA, institutions are restricted from releasing educational records unless a student has given consent. While FERPA did protect student rights, it contained a safety issue. Partnered with HIPAA, the Health Insurance Probablility and Accountability Act, teachers and administrators were unable to share information that may indicate someone's life or well-being was in danger without the student's consent (Tribbensee & McDonald, 2007). In 1990, an act

JUDICIAL AFFAIRS IN HIGHER EDUCATION

called The Clery Act was signed into law. This law required students to be informed of crimes on campus (Summary of the Jeanne Clery Act, 2012). This act was significant as it required a balance between student privacy and student protection on campus. In 2009, FERPA was reviewed and changed, partially due to the aftermath of the Virginia Tech campus shooting. The changes stated that information about students could be shared without consent if there was a threat by an individual to students and parents (Rinehart-Thompson, 2009). The changes also noted that, if a student's records were maintained by university health clinics, those records were regarded as educational records and were only required to follow FERPA laws (RinehartThompson, 2009). These changes in FERPA have proven to be extremely influential in how judicial affairs are facilitated. Administrators must be careful they do not violate students privacy, while at the same time they must make sure the proper disciplinary actions are decided upon. Given its history, judicial affairs seems to be an ever changing aspect of higher education. Laws change, policies are updated, and judicial affairs must always be cognisant of these changes in order to abide by school policy and the law. Because judicial affairs must always change, most issues get resolved fairly quickly. There are, however, some issues that still need to be addressed. The first issue is clarity regarding FERPA and the Clery Act, or the Campus Security Act. There is still a lot of gray area regarding FERPA laws and responsibility of an institution in a situation where the Campus Security Act is needed. Amendments to these laws have helped administration, but schools still often are confused when a crisis occurs (Lowrey & Zacker, n.d.). For example, in 2012, James Holmes, a former University of Colorado student, killed dozens of individualize in a movie theatre. Holmes had seen the universitys psychiatrist and she was concerned that he was unstable so she alerted the campus threat team. Holmes left

JUDICIAL AFFAIRS IN HIGHER EDUCATION the university soon after and, because of FERPA and counseling ethics laws, the university was unsure if they were able to notify the police that Holmes was unstable and needed psychiatric care (M., 2012). While the university is not liable for what happened in Colorado in any way, one might wonder whether this tragedy could have been prevented. An example of confusion of the Campus Security Act would be the aftermath of the Virginia Tech shooting in 2007. Virginia Tech is still under legal fire for the actions they took that day. In 2012, Virginia Tech was found responsible for negligence in reference to the Campus Security Act. The parents of two victims sued the university stating the information of the gunman was delayed and incomplete, causing the death of their children (Lederman, 2012). In
2013, that decision was overturned by a jury who found that Virginia Tech did indeed give the most accurate information in the fastest amount of time possible (Grassgreen, 2013). These lawsuits have caused duress on the families involved as well as the university and, perhaps with a better understanding of the Campus Security Act, situations like this one can be avoided in the future.

Another major issue in judicial affairs is the confusion regarding what is legal and what is against the conduct code of a university. The semantics used to come to a decision in a student conduct meeting are very different than the semantics in the United States judicial process. The legal system uses the terms guilty or not guilty while the higher education judicial system uses the terms responsible and not responsible. Instead of students being sentenced, they are sanctioned. These differences make the initial hearing process incredibly confusing for students (Krapfl, 2011). The legal system requires proof beyond a reasonable doubt, while the higher education system requires preponderance of evidence. This means that, if the student is 51% likely to be responsible, the board is allowed to sanction that student as if he or she committed the violation. While serving on judicial boards, I have seen this confusion seep into the board room as well. Many first-time board members have trouble deciding if a student is

JUDICIAL AFFAIRS IN HIGHER EDUCATION responsible or not because they are used to needing solid evidence. This confusion can make hearings last longer than they need to and it can discourage faculty and staff from volunteering

for these boards. This confusion may also lead to increased appeals and potential liability for the university. If, for example, a student were found not responsible for a violent action because the board members were confused by the preponderance aspect of decision making, and this student committed another violent act, the university could be held liable for not maintaining policy. While this is an extreme example, it is something that is discussed in many boards. While it seems as though these are major issues, there are solutions. Regarding FERPA confusion, the best thing that can be done is to educate. I believe it should be a policy for there to be FERPA information on-hand at each office on every campus. This can be implemented by putting a document on every employee computer or by putting information on a bulletin board within the office. I believe having direct access to the answers of frequently asked questions can be extremely important in questionable situations. I also believe that it is important for employees to utilize the legal affairs departments on campus. Consulting with legal affairs about questions that do not have obvious answers is a great way to obtain accurate information quickly. Confusion about the proceedings and semantics of judicial hearings can be remedied in a similar way. Judicial board members are required to attend training, but many board members are faculty and staff. Faculty and staff often have schedules that conflict with training sessions and, while these members are given a guide, it would be helpful for them to understand the process better before coming into a judicial hearing. In my experience, the board members get a chance to discuss the evidence before making a decision. I think it would be extremely beneficial to quickly review what preponderance means in order to eliminate confusion. Regarding student confusion, it is important to give students information about hearings before they are involved in

JUDICIAL AFFAIRS IN HIGHER EDUCATION the disciplinary process. When students are put through the disciplinary process, they are often concerned and scared. Many times, students are focused on relaying their side of the story to their conduct officer and they do not take the time to understand the actual process. This can be remedied by given students this information at orientation. I believe students will retain the information on the judicial process better if they are focused on learning about the school rather than how they are going to keep from being found responsible for their violation. It is also important for staff to relay the proceedings to students who do get in trouble before they meet with a conduct officer. Judicial affairs is, and will continue to be, an important aspect of higher education. Judicial affairs is constantly changing in order to meet legal and institutional requirements, something the history of the department proves. When judicial affairs began, Presidents of universities used corporal punishment to keep students on a positive path. Now, there are departments that oversee the fair practices of hearings and appeals. It is amazing to see how one

aspect of higher education has changed over the course of 300 years, and I believe judicial affairs will continue to adapt to successfully meet the needs of their institutions.

JUDICIAL AFFAIRS IN HIGHER EDUCATION References

Dixon v. Alabama State Board of Education. 186 F. Supp. 945. (1960). Retrieved from http://www.stetson.edu/law/faculty/bickel/civilrights/media/document/case-digest-dixonv-alabama.pdf Grassgreen, A. (2013) Virginia tech ruling reversed. Inside Higher Ed. Retrieved from http://www.insidehighered.com/news/2013/11/01/va-supreme-court-rules-virginia-technot-liable-shooting-deaths Krapfl, K. A. (2011). Judicial affairs: history, moral development, and the critical role of students (Master's thesis). Retrieved from http://krex.kstate.edu/dspace/bitstream/handle/2097/8446/KristenKrapfl2011.pdf?sequence=1 Lederman, D. (2012). Jury finds virginia tech negligent in 2007 shootings. Inside Higher Ed. Retrieved from http://www.insidehighered.com/quicktakes/2012/03/15/jury-findsvirginia-tech-negligent-2007-shootings Lowrey, J. W. & Zacker, J. (n.d.). The role of student conduct programs: CAS standards contextual statement. University of Houston Downtown. Retrieved from gator.uhd.edu/~williams/CAS/SAGs/JPAS/context.rtf M., R. (2012). James eagan holmes psychiatrist warned, but was ignored, before aurora shooting. PolicyMic. Retrieved from http://www.policymic.com/articles/12339/james-eaganholmes-psychiatrist-warned-but-was-ignored-before-aurora-shooting Rinehart-Thompson, L. A. (2009). Amendments to ferpa regulations: New changes attempt to balance safety and privacy in student records. Journal of AHIMA, 80(7). Retrieved from http://library.ahima.org/xpedio/groups/public/documents/ahima/bok1_043997.hcsp?dDoc Name=bok1_043997

JUDICIAL AFFAIRS IN HIGHER EDUCATION Summary of the Jeanne Clery Act (2012). Summary of the jeanne clery act. Clery Center for Security on Campus. Retrieved from http://clerycenter.org/summary-jeanne-clery-act Tribbensee, N. E. & McDonald, S. J. (2007). NACUANOTES: Ferpa and campus safety. NACUANOTES, 5(4). Retrieved from http://www.nacua.org/documents/ferpa2.pdf