COLUMN: Rules, Rights and Justice

From Mike Nadel's, "Give 'em Hell," Fall '95 From Mike Nadel's, "Give 'em Hell," Fall '95It was a cold night just over two years ago when the Delta sisters appeared at the door of my High Rise East apartment and accused my roommates and I of shouting racial epithets at them as they performed on Superblock. The case brought the University national embarrassment and caused race relations to deteriorate even further. However, the "water buffalo" case also yielded some great positives. It was the turning point that marked the beginning of the end of the politically correct insanity of the last decade. As a result of Eden's case, the speech code fell. A vague policy of censorship that lent itself to abuse of power was replaced last year with the words "Speech, as such, shall not be regulated." Further, the events of the spring of 1993 revealed the flaws in the University's judicial system. Catherine Schifter and Robyn Reed, the two judicial administrators most responsible for mishandling Eden's case, lost their positions. Interim Provost Marvin Lazerson called for the creation of a new judicial system to be run by students and appointed a student committee to write a new charter. It seemed that out of all the struggle and strife, a new day was dawning. Then the committee began its work, the heat of summer descended on Philadelphia, and a new provost took office. Now University Provost Stanley Chodorow has proposed a judicial charter that looks far different from the one that those concerned with due process had hoped for. Suddenly all the gains of the past two years are at risk. The provost's proposal is frightening not so much because of what it contains, but because of what it lacks. It lacks basic protections to make sure that a student is not wrongly convicted of a crime he did not commit. There is no explicit presumption of innocence. There is no guarantee that the defendant will be able to tell his story. He may speak only when spoken to by the hearing board. There is no opportunity for the defendant to confront his accusers by cross-examining them. The defendant does not have the right to open the hearing to the public so that he can expose injustices which may creep into the system. An inarticulate and scared defendant must stutter and stammer before the hearing board because his advisor is forbidden to speak in the hearing. There is no right to timely justice. The administration may allow a case to drift into summer when there is no one here to monitor what they are doing. Because the judicial officer reports directly to the provost, the provost has absolute power to intervene and circumvent the system at his will. The proposal also gives the provost the unchecked power to appoint and dismiss the judicial officer. It is likely, then, that the judicial officer will give deference to his boss over justice and fairness. And the list goes on. Last Wednesday, University Council voted overwhelmingly to send the proposal back to the committee to be revised. However, the wrongs in the proposed charter cannot be righted without straying from the provost's basic objectives. The charge of the committee, apparently, was to design a "non-adversarial" system. The hearing, they believe, should be a "search for truth" rather than a confrontation. Admittedly, cross-examination of witnesses, advisors who can talk, and hearings which can be opened to the press do not do much to reduce the level of confrontation. The answer to this dilemma is to recognize that the goal of a non-adversarial system is a pipe dream. A judicial system is inherently adversarial. When a student is charged with violating the code of conduct, he faces a punishment that will have a huge impact on the rest of his life. This point cannot be overstated. Even if he is not suspended or expelled, he will bear a mark on his transcript that can keep him out of graduate school or prevent him from getting a good job. In the world of a student at the University, this is just short of capital punishment. It is the University that is trying to do this to him, so he is certain to view the University at his adversary. The emotions in the hearing room will inevitably be as intense and profound as any criminal trial. Likewise, if the University is seeking to punish a student, it must believe that the student is hindering its academic mission. It is a fantasy to believe that the student will be treated in a kind or even a dispassionate truth-seeking manner. The reality is that the University will be out to get him. Considering what is at stake, it is naive to imagine that these hearings will be love-fests involving smiling people of good will. Provost Chodorow is a scholar of medieval law. He argues that non-adversarial systems have existed –– just not in America. His academic idealism leads him to believe he can use the theories and knowledge he has accumulated to design the perfect judicial system. However, this is simply not a reality, and this issue is too important to rely on wishful thinking. The Provost and the committee should accept that hearings are not going to be pleasant affairs. Then they can move forward to design a system that protects the rights of everyone involved. The system that eventually results from this process will be in place for many years and effects all of us. It was a cold night this past Saturday when a Latino sorority was performing on Superblock outside High Rise East. Sure enough, the windows opened and the shouts rained down. I didn't hear any epithets, but as the "water buffalo" case demonstrated, that doesn't really matter. Intentions don't matter. Guilt or innocence doesn't matter. Unless the provost is forced to yield, the judicial system could be at your door.