Duke’s campus is an 8,470-acre legal exception. Students rarely have to confront the legal consequences of crimes like underage drinking or mild drug use, and the Duke University Police apparatus shields students from the law more often than it subjects them to unpleasant legal realities. As associate dean Tom Szigethy declared four years ago, “On campus, if you are drinking underage... no one is going to say anything.”
The advantages of living in Duke’s extra-judicial fiefdom are clear: smart students engaged in foolish behavior avoid blemishing a shiny legal record. But the price of insulation is high: students accused of policy violations forfeit the due process rights afforded to defendants in state and federal courts. “Disciplinary hearings are not trials,” states the Duke Community Standard in Practice, “and are not constrained by rules of procedure and evidence typically used in a court of law.” After all, according to the policy guide, a disciplinary hearings is just a “conversation.”
In eschewing both the language and practice of judicial procedure, the University unfairly limits students’ due process rights. Although the University outlines a number of procedural rights for disciplinary proceedings, the current code of conduct enumerates only a fraction of the rights protected by the 1999-2000 Community Standard in Practice. Students no longer enjoy the right to cross-examine witnesses, for instance, and the current conduct guide does not explicitly guarantee a presumption of innocence for accused students, except in cases of sexual assault.
Moreover, the code does not list a single sanctioning guideline for conduct violations. As we have previously argued, the lack of codified sanctioning guidelines for sexual assault hurts both the complainant and the accused. In our view, preferred sanctions for every violation should be written down. The powers of disciplinary panels should be explicitly enumerated, and students should be able to opt for an open hearing. The Community Standard in Practice should include an explicit presumption of innocence for defendants in all cases.
To justify the lack of enumerated procedural rights, administrators have historically argued that maintaining a list of all due process rights would not only be practically difficult, but might also be an “impediment to the educational message" that disciplinary hearings send. Student conduct hearings have very real consequences, however, and refusing, in the name of pedagogy, to outline fully students’ procedural rights understates the seriousness of disciplinary proceedings.
In 2007, when former Duke Student Government President Elliot Wolf mounted a soapbox and held forth on due process, Stanford boasted one of the most comprehensive systems of procedural rights in the country. And yet, in 2011, three Stanford students accused of plagiarism suffered serious and sustained violations of their due process rights. What the Stanford incident suggests is that, in a just disciplinary system, students would have not only a comprehensive list of enumerated procedural protections, but also the power to hold conduct officers accountable if those protections were abrogated.
To this end, the Office of Student Conduct, in cooperation with students, should revisit and, in some cases, expand the procedural rights of students accused of disciplinary violations. Students might be insulated from the law in some cases, but they should not be denied basic due process rights.