AND JUSTICE FOR ALL?: For years JIO's brand of justice has sparked debate

First in a Series Murder your roommate, cheat on a test or get caught drinking underage and you will be forced to deal with one of the most controversial and least understood aspects of the University -- the Judicial Inquiry Office. The JIO is perceived by many students to be all-powerful and unfair, particularly after being criticized in the national media for its handling of last semester's water buffalo and Daily Pennsylvanian confiscation cases. Many administrators say this perception is "warped." The system actually has "excessive layers of protection" built in to insure fairness, Associate Vice Provost for University Life Larry Moneta says. But the system's negative perception is not a recent phenomenon. Over the last decade, there have been numerous stories alleging mistreatment and logic-defying decisions by the JIO, giving the University judicial system its reputation as a sort of "kangaroo court." Confidentiality One reason for that perception is the system's code of confidentiality, students, faculty and administrators say. All student educational records, including University judicial documents, must be kept confidential or the University can lose federal funding under provisions of the Family Educational Rights and Privacy Act of 1974, better known as the Buckley Amendment. "There is a natural suspicion of everything that is that confidential," Moneta said. "I mean, the courts are not confidential. Criminal proceedings are open to the public, which is one reason why people trust that process. Criminal stuff is right out in the open; campus stuff is not." Moneta says he doesn't know how to "de-mystify" the process other than by explaining it thoroughly to students. The University releases general statistics on JIO proceedings to the public through campus publications, but individual case records are not likely to released to the public in the future – unless the Buckley Amendment is overturned in court or different legislation is passed. While many students say the secrecy of JIO proceedings is frustrating and unfair, most faculty members say confidentiality serves a legitimate purpose in protecting student rights. Recently, the Georgia Supreme Court ruled that the Buckley Amendment to applies only to academic records and not to campus disciplinary records, but so far no other state has followed Georgia's lead. Mark Goodman, executive director of the Student Press Law Center, says the Washington-based agency is currently looking for test cases to challenge the Buckley Amendment. In Loco Parentis Is Dead The University's relationship with students used to be defined in terms of the doctrine of in loco parentis -- in the absence of parents, the University was considered legally responsible for the actions and safety of its students. The University used the doctrine to justify a judicial system that imposed a different standard of justice than real courts did. And campus police used a different set of procedures when dealing with students than when confronting offenders from outside the University of community. But during the turbulent 1960s this doctrine fell out of fashion as students fought to free themselves from University control and assert themselves as adults, fully responsible for their own actions. As Moneta puts it, "In loco parentis is dead." But federal laws, particularly the Campus Crime and Safety Act and the Drug Free Schools and Communities Act, have made it difficult for schools to abandon in loco parentis, requiring that students receive more protection than the average citizen, he says. "There are conflicting messages that we have here with the legislation and the litigation significantly influencing the extent to which [the University] can treat [students] as adults," Moneta said. "We walk a tightrope in terms of our ability to abandon in loco parentis, as I would prefer to do." In loco parentis remains in effect in many other respects as well. University Police treats student offenders differently than other citizens, especially when it comes to infractions like underage drinking. And JIO procedures impose a different form of justice than regular courts do. Moneta says Philadelphia Police does not want to handle student complaints and area courts do not want to be swamped with student cases. He also says that in the '60s, while students were rebelling against in loco parentis, University Police was more willing to take matters to the state judicial system than they are today. "The courts have been very loath to interfere in what is perceived to be an internal matter of a private institution," says Emeritus Law School Professor Leo Levin. The Ever-Evolving Charter The University's judicial charter, which dictates the procedures the JIO must follow, is printed in the handbook, Policies and Procedures. This charter has changed greatly over the years, evolving as the result of controversies and expanding to cover an ever-increasing range of offenses and situations. "Ultimately, there is in almost all [colleges] a dissatisfaction with the judicial systems, while at the same time more and more pressure is being placed upon these systems," says Judicial Administrator Stephen Gale, a regional science professor. "Right now, there is tremendous pressure to settle all kinds of matters that never would have even come up before." As JA, Gale is responsible for organizing judicial hearing boards and overseeing the hearings to make sure they run smoothly and no procedures are violated. This is a different from the role of judicial inquiry officers, currently Steven Blum and Robin Read, who investigate complaints, propose settlements and act as prosecutors before hearing boards. But before the creation of the JA and the JIO, it was deans who disciplined students for violating University policies. Very few written procedures governed the process and deans often relied on unwritten procedures in doling out justice for students. Eventually, several courts ruled students could not be summarily disciplined without any semblance of due process, Moneta says. Legal experts say that means only that students must have an opportunity to explain their side of the story. The University's current judicial charter has its roots in this body of case law. But Moneta says the pendulum has swung too far in favor of creating a University judicial process that emulates the real court system. The faculty who wrote the policy were so interested in protecting student rights that they included too many protections, making the system slow and onerous for all involved, he says. Just 10 years ago this was not case. Two controversies over the last decade have significantly changed the look of the JIO and the judicial charter. The ATO Case In 1983, a University student alleged brothers of the Alpha Tau Omega fraternity gang raped her at a party in their fraternity house. Although the alleged rapists were never tried in a court of law, the fraternity was found collectively responsible for the rape in a University proceeding and lost its recognition. ATO then sued the University, challenging its decision to revoke recognition. At the time, the University Code of Conduct only stated that members of the University community should not act "immaturely." There was no JIO or JA. The investigation was conducted in part by the Vice Provost for University Life who also presided at the hearing board. After months of litigation, the case eventually made its way into Common Pleas Judge Lois Forer courtroom. She ruled that the University investigation and hearing had been conducted without "the most minimal standards of fairness." She ordered ATO reinstated pending another hearing. At this hearing, the University suspended the fraternity for six months after which they returned to campus. "There were no rules on how to conduct the proceeding. There were no rules of evidence. They permitted investigators to testify," Forer, now retired, said last week. "It was unfortunately a very mishandled affair because we got to the bottom of what happened." After the ATO case, the JIO was created and the University moved to further codify its policies and procedures. The Vincent Phaahla Case From 1988 to 1990, the JIO and the judicial charter were embroiled in another major controversy. A graduate student activist named Vincent Phaahla was brought up on charges of violating the University Code of Academic Integrity in 1988 for allegedly lying on his application to the University. Phaahla said the charges were false. He alleged the University did not like his radical political activity, which often involved accusations of racism at the University, and had created the charges as an excuse to expel him. Phaahla, the Black Student League and others accused then-JIO Constance Goodman of failing to follow the procedure outlined in the judicial charter and called for her removal. They also claimed the process was unfair and that information about the case had been intentionally leaked to members of the faculty in violation of the Buckley Amendment. As a result of the Phaahla case, many student leaders called for the bifurcation, or splitting of the JIO into two roles – one JIO to handle settlements and another to handle the prosecution of cases once settlement was rejected. Bifurcation was the source of major debate in drafting the last revision of the judicial charter. In the end, the students who wanted to split the JIO lost by one vote. Those opposed to bifurcation were primarily faculty members who saw splitting the JIO as too confusing, time-consuming and not cost-effective since it would mean hiring another permanent staff member, says Engineering Professor David Pope, who was instrumental in the creation of the current judicial policy. The Current Policy Despite the controversies, much of the University's judicial procedure remains the same as 10 years ago. The University only codified what had previously been unwritten, Pope says. "The school never did develop a proper procedure," said Forer, who claims the current system remains unfair to both victims and the accused. "There is considerable danger because you have people who have been mistreated and if they are not going to get the proper redress in the University then they would be well advised to avoid the whole University system," Forer said. "[For a serious offense, a person] would do far better to go to the district attorney and have it handled in the proper way than have an improper, irregular hearing." But Moneta says the perception of unfairness is an illusion, fueled by the confidentiality and by the difficulty many people have in understanding the difference between University procedures and laws. "We always try to lose sight of the fact that this is not a criminal or a civil procedure. This is an educational procedure," he says. "Somehow we have to have a disciplinary response in concert with and consistent with educational perspectives." The University needs a system of justice separate from the outside judicial system because the University community has different needs and values, Moneta and several faculty members say. Moneta says the need to keep the policy non-adversarial and educational is the reason for many of the differences between the judicial procedure and that process used in criminal courts. Some notable differences include the fact that attorneys are not allowed as advisors unless criminal charges are pending or likely, hearsay evidence is allowed and advisors are not allowed to cross-examine witnesses. The differences extend even to the language of the judicial charter – a student cannot be found "guilty" by the JIO or a hearing board, they can only be found "responsible" for the alleged act. Many students and faculty, however, say this argument is "playing semantics" and a notation on a student's academic record saying a student was "found responsible" for some offense means the same thing as being found guilty. And Assistant JIO Robin Read says she has no problem with using the terms guilty and innocent. Others say the sanctions imposed by the University are often just as serious, if not more so, than those in a criminal proceeding. Pope says that in drafting the judicial charter there was a need to balance the protection of student rights against the need for quick, informal proceedings and the need to avoid an adversarial system. "The central question is how do you protect people's rights and at the same time keeping [the process] from going on and on without end?" Pope says. "I believe that [the current system] is a good compromise." Moneta says while the courts specify that students only need a chance to explain their side of the story to satisfy the legal definition of due process, at the University the code has evolved "into a 50-page codified judicial system." 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. Pope says he agrees the system has become "too long and too legalistic," but cannot think of a way to shorten the process without compromising fairness. The University should "avoid an adversarial system like the plague," he says. "Just because we have a [court system] that is adversarial, doesn't mean that this is the best way of doing things," Pope said. "Do you want an adversarial system to settle disputes within a family? [The current charter] is a good balance." Many students and faculty who have dealt with the JIO say the current system is still unfair. They say the JIO has too much power, especially during the settlement stage, where approximately 95 percent of all cases end. Some have also said the JIO does not follow the procedures outlined in the charter, misleading students when interviewing them about alleged charges. Many say upon entering the JIO's office they felt they were assumed to be guilty by the JIO. But Read, who the national media accused of using poor judgment and not following proper procedure during the "water buffalo" case last semester, denies that charge. "I always, at the beginning, make an attempt to be objective," Read said. "I'm experienced enough to know that there is a lot more information I need to find out before I can determine whether someone is innocent or guilty." Once she reaches the point in the investigation where she can determine guilt or innocence, Read then "feels very comfortable" either dismissing the charges, or if she thinks the person is guilty, assuming the role of prosecutor, she says. Read says very few students escape being found responsible if their case goes to a hearing because she has already decided they are guilty – which she would not have done without significant evidence. Law School Senior Fellow David Rudovsky says the procedure followed in the hearings stage of the JIO process is unfair. Moneta says the JIO is "a trained listener," someone who can talk and relate to students throughout the process and especially during the settlement stage. But Rudovsky says once the hearings begin, the JIO acts as "an experienced prosecutor" working for the complainant. The JIO is not just a witness; he or she can call witnesses and cross-examine them and make unlimited statements to the hearing board, Rudovsky says. The accused must cross-examine witnesses themselves, without the aid of their advisor, who is most likely not an attorney or a trained investigator. The accused's advisor may only make a closing summary to the hearing board. Rudovsky says the system must be changed. He says using preponderance of the evidence as the burden of proof allows for too much error in the hearing board's verdict and allowing hearsay evidence "warps" the perspective given to the hearing board. The Future of the System With new JIO Steven Blum and three separate committees set to review the JIO and the judicial charter, the future form of the University judicial charter remains unclear. There are those at the University, like Pope, who feel the current system represents the best balance between protection for students and informality, though he would like to see the entire system run by students eventually. Others, like Moneta, believe the judicial charter must be simplified to allow better access for students and to require less time to administer. And there are those, like Rudovsky, who say the system needs more protections to be truly fair. Which of these schools of thought will ultimately find expression in the judicial charter is unclear. What seems certain is that the JIO and the University judicial system will remain a source of controversy for years to come.