Last in a Five Part Series More mediation. Fewer formal procedures. And a renewed emphasis on education over punishment. That's how many envision the University judicial system of the future. But with the possibility of three separate committees reviewing the Judicial Inquiry Office and its charter by the end of the academic year, the JIO's future is as murky as some have alleged its current system of justice to be. Already, there is disagreement. Many say they want to eliminate the complicated language and procedures of the University's Judicial Charter, as spelled out in University Policies and Procedures. These people believe the current judicial system is so complex and intimidating that most students cannot understand the process and that too much administrative time and effort is required to manage it. Ultimately, they say, the University should develop an entirely student-administered judicial system. Others, however, fear that would hurt all involved parties. They say by emphasizing informality, the University judicial system will actually sacrifice justice, giving students fewer rights and protections. Instead, they say, there should be more protections built into the existing system, including stricter burdens of proof, rules of evidence more like those used in real courtrooms and the right for both parties to be represented by lawyers. The two sides of this debate agree on one point, though – the current University judicial system must change. Pushing Change "We need to restore confidence in the JIO procedures, and the single best way to do that is increase student involvement and increase faculty involvement," said Associate Vice Provost for University Life Larry Moneta. "We will get to review the charter this year. By the end of the year, you will see changes." These changes, Moneta says, will include modifications of the judicial charter's language and a change in the conduct of the Judicial Inquiry Officer. He says he expects new JIO Steven Blum, who began working at the University two weeks ago, to take a visible and active role in that process. Retired Pennsylvania Common Pleas Judge Lois Forer agrees the time is right for changes in the University's judicial procedures. It was Forer's criticism of the University's handling of the 1983 case of an alleged gang rape by several Alpha Tau Omega fraternity brothers that led in part to greater codification of University policy. Forer said the University's hearing on ATO's recognition was an "irregular proceeding" and failed to provide "even the most minimal standards of fairness." No one was ever tried for the rape because the Philadelphia District Attorney's Office did not believe a conviction could be won given the evidence. But the fraternity did have its recognition revoked in University judicial proceedings. ATO appealed this ruling and, after months of litigation, the case wound up in Forer's court room. "With new personnel [at the University] this is the ideal time for an appropriate committee consisting of lawyers and legal personnel to sit down and review these procedures," she said last week. "The University should not wait any longer." But Forer, who has often accused the University of ignoring her recommendations in the wake of the ATO case, may be disappointed again. None of the committees set up to review the JIO and the judicial charter consist of attorneys or "legal personnel." The Case for Simplicity Moneta and those who want a simplified judicial system say that is the last thing the judicial system needs now. They suggest that the language of the judicial charter is already too complex for the average student to understand, making the system appear daunting and inaccessible. Moneta says University administrators must spend countless hours trying to ensure the system is set up and maintained according to the complicated guidelines in the Policies and Procedures handbook. "We've put too much effort into trying to manage [the system]," Moneta said. "I think the next generation of the charter has to be a lot simpler because there is always a burden on [the administration] to organize it in a way so that we do not appear to be manipulating the system – and still there is this perception that we are manipulating it." Much of the system's complexity, Moneta says, resulted from efforts to protect students from being punished without due process. But he says the courts have defined "due process" only as allowing students to be given a chance to explain their side of the story. "Here we have changed 'letting students tell their side of the story' into a 50-page codified judicial system," he said. There is an "excessive layer" of protections built into the University judicial system by the faculty who drafted the policy, he says. Although faculty members who drafted the rules thought they were acting in students' best interest, he says the result instead was a large, invasive process that many think does more harm than good. "We've been backed into this very heavy, very weighty set of procedures, not because there was a desire up front to be that heavy or weighty, but because we wanted all these layers of protective mechanisms," Moneta said. "We've gone beyond where we should have in terms of the level of detail and the level of codification." For example, Moneta noted that just by following the guidelines in Policies and Procedures, it can take 73 days to settle a case. And settlements often can take much longer. 'Roll Back' Procedures? Fortunately, in Moneta's opinion, the trend is shifting toward more informal procedures. "I think we have to roll back [the procedures]," he said. "But we have to roll it back in a way so that people feel confident. Students need to feel they are still protected." Moneta says this will "be a struggle," but can be accomplished. Emeritus Law School Professor Leo Levin says small claims court is a "real-life" example where informal proceedings are used to settle disputes quickly and fairly. He says this represents a recognition that normal civil proceedings are complicated, time-consuming and imperfect. Those who would like the University judicial system to emulate a real courtroom, he says, often forget that fact. Many students and faculty members want to ultimately create a system which is run entirely by students, similar to systems at the University of Virginia and other schools with strong honor codes, Engineering Professor David Pope says. Pope was instrumental in drafting the current Code of Academic Integrity and making sure it was consistent with the judicial charter. "We should avoid an adversarial system like the plague," Pope said. "And we should move toward a system that is run totally by the students." The reason the current system is not student-run is that in the past, students have not expressed an interest in administering the judicial process, he says. Moneta suggests the following reforms to the system: ·The rules governing public disclosure of proceedings should be changed to allow the complainants greater freedom to speak once the accused has gone public. ·The rules governing the creation and selection of hearing boards should reformed and simplified. Panels should be formed on a per case basis. Currently, there are several standing hearing boards which sit on cases in alternate months. ·Education must remain the primary focus of the system. ·Greater emphasis should be placed on settlement and conflict resolution through mediation. A new mediation option should be available to the accused. Blum, an expert in conflict resolution, says he believes he can provide more mediation within the University community. Calls for More Protection But not everyone shares that optimism. Law School Senior Fellow David Rudovsky is among those who doubt the system can be made less formal without eliminating protections that are vital for justice. Rudovsky, who often represents defendants in the criminal justice system, used to advise respondents in University judicial proceedings. But, since becoming disillusioned by what he considers the system's inherent inequity, he will no longer advise students. For Rudovsky, even what Moneta considers to be "excessive layers of protection" are inadequate. "There is a danger that in pursuing informality, we defeat a much more fundamental process – the process of truth," Rudovsky said. "It is not even a close case between informality and truth. We should be on the side of illuminating truth." Rudovsky says the University should consider using the Law School's Code of Student Conduct and Responsibility as a model. This policy allows both sides to be represented by attorneys, and uses a stricter burden of proof than the University's judicial charter. Supporters of the current charter say allowing these additional protections would make the system too adversarial, but Rudovsky and Forer disagree. The system is naturally adversarial, especially when the student is charged with a serious offense like sexual assault, says Rudovsky. "Any time there is a dispute of fact or a question of identification, you are dealing with an adversarial situation," he said. He says it has been his experience that when both sides are represented by lawyers, disputes are usually settled faster and more amicably. Forer says attorneys are necessary to protect both the complainant and the accused. "If the victim has been injured in any way, then there should be legal counsel," she said. "The whole purpose of having attorneys is to protect their clients." Although the charter allows students to have advisors from outside the University community, including lawyers, when there are criminal charges pending or they are likely, Rudovsky says it's not enough. He says once a case goes to a hearing board, the JIO not only acts as a witness, presenting the conclusion of his or her investigation, but also as an "experienced prosecutor," able to call witnesses and elicit testimony. At this point, Rudovsky says, the JIO is in essence representing the complainant, since the case would not have gone to the hearing board if the accused had not disputed the JIO's findings at the settlement stage. But the accused is not given the same right to have a person who is trained at eliciting testimony and cross-examining witnesses. Rather, the charter says they must perform this questioning themselves. Both the complainant's and the accused's advisors, even in the unlikely event that they are attorneys, can only present summary statements – the equivalent of closing arguments in a real courtroom. "Examining a witness is a form of art," Rudovsky said. "No student, even a law student, is adequately trained in bringing out all of the relevant facts." Rudovsky says while the University's judicial system would not violate the court-mandated level of due process, it still creates an unfair situation for the accused, or respondent. The Law School policy allows both sides to be represented by attorneys, which Rudovsky says puts both parties are on equal terms. He also claims the University judicial system's use of preponderance of the evidence as the burden of proof – which means that the side whose evidence has more weight prevails – allows for too much error, especially when the charge is serious. "Right now, you can be fairly uncertain as to the facts of a case and still hold the respondent responsible," Rudovsky said. Clear and convincing evidence should be the burden of proof, he says. This is the burden of proof used in the Law School policy and in criminal courtroom's for certain cases, including determination of insanity. Rudovsky says he favors use of the highest burden of proof – beyond a reasonable doubt – in the most serious offenses in which a criminal proceeding could be pending or likely. He also says there is "a great danger" in allowing hearsay evidence under University procedures. Such evidence tends to distort a case's facts, he claims. Forer, Levin and Rudovsky all say a key to justice in any system is reasonable, competent judges. In the past, the JIO has been criticized for reaching unreasonable conclusions when proposing settlements. "A very famous person in federal procedure once said that 'there is no system of procedure so bad that it cannot be made to work in the hands of good judges. There is no system so good that it cannot fail in the hands of bad judges. What one needs is a system that works for most judges,'" Levin said. (Ironically, Levin was the hearing officer in the ATO case and was harshly criticized by Forer for ignoring her recommendations on what procedures should be followed by the University.) Judicial Administrator Stephen Gale, a regional science professor who recently assumed the JA position, says the University judicial process is a "belief system" and students have to believe they are getting justice in order for it to work. He and Levin say mediation is not necessarily a good solution to JIO proceedings, because it might allow for more personal bias on the part of the JIO. The Committees The ultimate form of the future JIO and judicial charter is up to three committees and the direction taken by Blum. · The Abel Committee, chaired by Mechanical Engineering Professor Jacob Abel, is currently reviewing whether JIO procedures were followed properly in the controversial "water buffalo" case and will suggest any changes in the policy's wording that make it easier for both student and JIO to follow. · The Commission on Strengthening the Community, chaired by University Trustee Gloria Chisum, will look at the University judicial system along with a wide range of other issues and may suggest changes to the judicial charter. · Finally, the yet-to-be-formed Judicial Inquiry Office Evaluation Committee will evaluate JIO procedures, following the recommendations of the other two committees. Also, Blum says he will take a more visible role as JIO, perhaps starting a mediation option to help settle conflicts. And Pope and others hope Blum will work toward creating a student-run system. Pope says an interim step would be to create a student counterpart to the JIO. Whatever the future holds, some things about the JIO are not likely to change. The University's judicial proceedings will remain strictly confidential, as this secrecy is mandated by the Family Educational Rights and Privacy Act of 1974, better known as the Buckley Amendment. And it is unlikely that whatever system the University eventually adopts will be free from all controversy. "We're looking for [a system] where students may not be happy with the sanctions imposed by the JIO," Moneta said, "but where they at least feel that the system is fair."
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