The 15-member committee responsible for examining Duke's judicial affairs policy was suspended in late January by Dean of Undergraduate Education Steve Nowicki-a move several student leaders said may leave key issues of judicial reform unaddressed.
Nowicki told committee members Jan. 29 that the task force, which began meeting in November, would be temporarily disbanded because of ongoing litigation against the University. He said he wanted to prevent the possibility that members of the committee would be deposed or cross-examined during the lawsuit the University was facing, filed in December by three unindicted members of the 2005-2006 men's lacrosse team.
In the interim, the practices DSG challenged in September remain unchanged.
Justifying the suspension
University Counsel Pam Bernard called two pending lacrosse-related lawsuits both "misdirected" and "meritless," but she advised Nowicki that it was still possible for members of the committee to become embroiled in the cases.
But some student leaders have questioned her reasoning, saying members were not asked whether or not they would be willing to be called as witnesses should their committee involvement require it.
"I think [the genuine reason] was that the committee was launching an empirical investigation at a time when a lawsuit had alleged there were problems in our judicial practices," said DSG President Paul Slattery, a senior. "The risk for the University, of course, was that the investigation would not only be discoverable [evidence for lawsuits] but could be massaged to support the legal allegations."
Nowicki said he was not pressured into making the decision to put the committee on hiatus.
"My primary concern was for the students and the members of the committee. I understand the University and the legal counsel and I'm not insensitive to that," he said. "My decision... wasn't because of my concern for the University or things that might have come out of that [legal proceeding]. The University may have its concerns, but that's not what I'm involved with."
In an e-mail sent two weeks before the committee's suspension in January, Bernard commented on the potential consequences of DSG's initial proposals for reform.
"If Duke were to adopt the students' position on important points in an effort to compromise, the result would be: 1. Undermining universities' decade-built position, uniformly accepted by courts as correct... 2. Duke would be seen as weak among its peers and out of step with the strong trend over the last decade to de-legalize student conduct processes," she wrote in the e-mail, obtained by The Chronicle.
Bernard also prepared a spreadsheet to provide legal analysis and potential solutions for discussion. In most cases, she recommended "keep[ing] current practice in place."
Slattery said he looked critically upon the University's efforts to protect itself, which might bar it from affording students the legal protections they seek.
"The University counsel appears to believe it is against the University's interest to stipulate any procedural protections in disciplinary policy because these protections, when broached, may result in civil action against the University and, apparently, make the University look weak amongst its peers," Slattery wrote in an e-mail.
Bernard declined to comment on the matter, but she wrote in an e-mail that she had experience dealing with student judicial issues. She is noted for her contributions to "Navigating Past the 'Spirit of Insubordination': A Twenty-First Century Model Student Conduct Code with a Model Hearing Script," which is billed as a reference for judicial affairs administrators and university attorneys.
The task force was formed in the Fall as an ad hoc addition to the Academic Integrity Council. Its creation stemmed from a memo Slattery sent to administrators and the Board of Trustees in September, saying current policy infringed on student rights.
Alcohol Law Enforcement sweeps during the first two weekends back to school this year left 22 students facing charges related to underage drinking. Although the charges were thrown out in federal court, they were pursued by the University, a move Slattery said prompted DSG's review.
"[The incident] was our foray into examining JA policy-whether they use illegally obtained evidence. From there it sort of metastasized into this much larger critique," he said.
Slattery and others reviewed the judicial policies of Duke in 1999-2000 and compared them to those in 2006-2007 and at peer institutions, including the University of Chicago, the University of Pennsylvania, Dartmouth College, the Massachusetts Institute of Technology and Yale, Stanford, Princeton, Cornell and Harvard universities. The DSG review found that a number of rights once included in Duke's judicial policy were no longer afforded; others were never included.
"The Office of Judicial Affairs... has systematically expunged procedural rights from its disciplinary policy since 1999-2000," DSG's report reads. "Numerically, Duke has transitioned from being an outlier in offering students rights to a more extreme outlier in denying students rights.... Unfortunately, the picture becomes more rather than less bleak with a deeper examination of the spreadsheet. The most important protections-the right to remain silent and evidentiary standards-have been removed. Other important protections, such as the right to first-round discovery, appear to have never been offered."
According to the document, there are several policies that most peer institutions have in place but Duke does not include. Eight of the peer institutions studied give students the right to know evidence collected by the university before they are required to make an official statement. Five of the peer institutions give the right to cross-examine witnesses, and five make students aware of their Miranda rights and the right to know the identity of panel members in advance. Duke also offered these three rights in 1999-2000, but they are no longer listed in current bulletins. Three universities provide that there is no off-campus jurisdiction-a stipulation never afforded by Duke.
Initially, Director of Judicial Affairs Stephen Bryan said he would incorporate DSG's report into previously scheduled external reviews, Slattery said. He added that he did not consider Bryan's solution satisfactory, but was hopeful when Nowicki stepped in to take over the examination.
"Steve took an important step in essentially circumventing Judicial Affairs, but it was undone by the University Counsel's influence," said 2006-2007 DSG president Elliott Wolf, a senior and Chronicle columnist.
Nowicki charged the committee, comprised of students, faculty and staff, with appraising Duke's judicial policies vis-a-vis several peer institutions. Before the task force was suspended, it planned to produce a report on its findings and recommendations for improvements by the end of Spring.
The evolution of Duke's judicial policy
The current Duke Community Standard, which provides the underpinning of the University's judicial procedure, went into effect in Fall 2007.
"The revisions [to the standard] came about as the result of a committee's work charged by the provost to review it after the lacrosse matter unfolded," Bryan wrote in an e-mail.
Duke did not instate its first formal honor code until 1993, though it had variations of similar commitments before then.
A letter to the University community in August 2006 cited ALE's 2005 back-to-school campaign-which resulted in nearly 200 student citations-and the lacrosse case in raising questions about the undergraduate disciplinary system.
"This uniform approach to off-campus behavior was a shift in University philosophy that recognized that students do not shed their affiliation with and representation of Duke when they leave campus," Bryan wrote in the letter.
Members of DSG raised concerns over the state of judicial affairs following an April 2007 revision of the Duke Community Standard. Wolf, then president of DSG, sent a memo to several University officials questioning Judicial Affairs' use of evidence collected by police that was ruled by a judge to have been obtained illegally.
"No law prohibits the University from using whatever evidence it deems probative and relevant to student disciplinary proceedings," Deputy General Counsel Kate Hendricks wrote last year in an e-mail obtained by The Chronicle. "While the prohibition of using illegally-obtained evidence in a criminal proceeding is a check on the criminal justice system and signifies that the act of collecting the evidence was flawed, it does not necessarily follow that the evidence itself is flawed or is invalid for other proceedings."
She noted, however, that the use of evidence should be evaluated on an individual basis.
Nowicki said he still hopes to implement changes by the end of the semester, despite the committee's suspension.
"I think the key difference here is we had a task force that reviewed things comprehensively and now I'll be responsible for looking at things on sort of a case-by-case basis," he said.
He added that per Slattery's request, he planned to prepare a document on the matter so the issue would not be lost due to DSG turnover.
"I think it's terribly unfortunate [that its work was suspended], because I think what would have come out of the committee would have been more substantial and far-reaching than what will come from a piecemeal administrative approach," Nowicki said.
Chair Noah Pickus, director of the Kenan Institute for Ethics, and other members of the task force have deferred comment to Nowicki since the its work was suspended.
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