For the first time since the 2002-03 school year, appeals boards in the Office of Student Conduct no longer have the authority to “resolve” cases. Instead, they must send the case back to OSC.
The new policy also gives OSC more authority to decide what happens to students after winning an appeal. For the 2016-17 year, the appeals board had three options: it could resolve the case, it could remand the case to OSC or it could send the case back to the original hearing panel with instructions for how to proceed.
This year, however, the appeals board must return the case to OSC. The new policy applies to both sexual misconduct cases and all other OSC cases. On its face, the policy’s language gives OSC broad discretion on what to do next.
“When a case is returned to the Office of Student Conduct, the Office of Student Conduct may decide to drop the case (e.g., based on insufficient information to believe that a policy violation may have occurred), send the case to the original hearing panel for reconsideration, send the case to a new hearing panel with the same or different charges, and/or (re)implement any aspect of the disciplinary process,” the policy reads. “A different decision (i.e., the decision of responsibility and/or sanctions) may subsequently result.”
James Coleman, John S. Bradway professor of the practice of law, wrote in an email that the policy update “is something else.” He argued it was an unfair approach, especially because the revised policy does not include explicit guidelines for how OSC can exercise its authority.
When asked about the updates to the sexual misconduct policy, Stephen Bryan—associate dean of students and director of OSC—declined an interview and instead directed The Chronicle to Sue Wasiolek, associate vice president for student affairs and dean of students.
Wasiolek explained via email that revisions to policies and procedures are made each year based on feedback from the community and ultimately approved or not by Larry Moneta, vice president for student affairs. She noted that students are given annual notification of changes through an email and that OSC also posts a list of the substantive changes on its website.
Moneta added that Duke makes adjustments to policies “all the time” with consultation from students on the Office of Student Conduct Advisory Group and then through a larger gathering of students, staff and faculty at the end of the year.
“The changes come from careful consideration of practices elsewhere, what we've learned from our own cases and thoughtful discussion and review,” he wrote in an email.
Moneta also said he is confident in the current practices’ ability to ensure fairness, consistency and just outcomes.
“Our panels of students, faculty and staff take very seriously their roles and we're proud of the community roles we have in the juridical processes,” he wrote.
A departure from past practice
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In and , the appellate panel had several options if an appellant’s claim had merit. It could reverse the verdict and withdraw all sanctions, modify the decision of the original hearing panel, remand the case with a requirement that a new hearing panel be installed or remand the case with alternate charges.
The is the first edition where the appeals board had the ability to “determine a final resolution to the case” or instead refer the case back to “the judicial officer for a new hearing.” If it chose the latter course, the board could recommend that alternate violations be considered.
The language changes slightly in the , giving the appellate board the option to refer the case back to the judicial officer for further review “and/or” a new hearing. However, the ability to issue a “final resolution” to the case remains intact.
Such language remains in place until 2015. It then changes again in the . The appellate board in this policy could still resolve the case—although the word “final resolution” was dropped—or remand the case to the original hearing panel with instructions to call further witnesses. The ability to send the case to a new hearing panel was removed.
For the first time in 15 years, however, the current policy does not give the appellate panel the ability to either issue a “final resolution” or “resolve” the case. Instead, if an appellant’s grounds for appeal are substantiated, the panel “will return the case back to OSC.”
The appellate panel also no longer has the ability to specify what happens next. It is not given the power to remand to a new hearing panel or to the original hearing panel with further instructions, at least according to the policy as written.
“When a case is returned to the Office of Student Conduct, the Office of Student Conduct may decide to drop the case (e.g., based on insufficient information to believe that a policy violation may have occurred), send the case to the original hearing panel for reconsideration, send the case to a new hearing panel with the same or different charges, and/or (re)implement any aspect of the disciplinary process. A different decision (i.e., the decision of responsibility and/or sanctions) may subsequently result,” the policy reads.
The grounds for appeal have also changed in recent years. In the 2015-16 year, there were three grounds for appeal: new information unavailable to the original hearing panel, procedural errors in the original panel or the panel’s finding had no plausible basis in the record.
Between 2002-03 and 2014-15, the third ground was slightly different and used the phrase “inconsistent with the weight of the information.” Between 1999-2000 and 2000-01, a ground for appeal was that the verdict was “incompatible with the weight of the evidence.”
But in 2016-17, the reasons for appeal were trimmed down to only include the new information and procedural errors grounds.
“It was not being interpreted correctly in most cases and often created confusion about what that aspect was intended to cover,” Moneta wrote in an email to The Chronicle for an . “Appeals are intended to assure compliance with proper procedures and those are the current grounds for appeal.”
Moneta declined to comment on the exact reasons why the “resolves” language was removed or why the appellate board could no longer send the case back to the original hearing panel with instructions on how to proceed.
Are the changes fair?
Although the new policy removes the appellate board’s ability to resolve cases, the appellate board has not used that ability often in the past. In , it denied five out of seven appeals. It denied 13 of 17 appeals in and 14 out of 16 in .
However, it has still resolved some cases.
In 2013-14, the board altered sanctions in two cases. The next year, it changed sanctions in two more cases and overturned findings of responsibility in two separate cases. In 2015-16, it altered sanctions in one case and granted an appeal in another, but the statistics do not explain what exactly that entails.
Coleman said he thinks the entire system needs to be re-examined to make it more fair and transparent.
“That is especially true for the procedures for sexual misconduct cases which currently bear no resemblance to anything fair,” he wrote. “In light of the Department of Education conducting such a policy review, now is the time for the Duke community to do the same.”
He added that the change in this year’s policy may be in response to legal difficulties the University has faced regarding a currently pending in state court in which a student appealed a finding from a hearing panel and won his appeal. Although he did not explicitly mention the name, the case Coleman referred to was that of junior Ciaran McKenna, a men’s soccer player who and Dean of Student Conduct Stephen Bryan on the grounds that the University violated its own policies during his disciplinary process and suspension for alleged sexual assault.
Coleman was McKenna’s faculty advisor during the case, and testified in court on McKenna’s behalf. McKenna won a preliminary injunction February 2017 allowing him to remain at school while litigation continues. He remains a member of the men’s soccer program.
According to the lawsuit, McKenna’s case was originally heard by a Duke disciplinary panel in July 2016, which concluded that the female student did not verbally deny consent although her actions did not give consent either. McKenna then appealed the ruling.
After an appeals board concluded that the panel had not applied the correct "reasonable person" standard, the lawsuit said the case was supposed to be sent back to the original panel. But McKenna alleged Bryan set up a new panel to hear the dispute instead, and that this panel found the female student had in fact verbally denied consent. It then suspended him for six semesters.
McKenna claimed it was against Duke policy to create a new hearing panel.
The 2015-16 version gave the appeals board the power to resolve the case or send it back to the original hearing panel. It did not contain the provisions, found in previous policies, to send the case back to OSC “for further review and/or a new hearing.”
“The second [hearing] panel decided against the student on the ground on which he had won before the first [hearing] panel,” Coleman said. “This revision is an attempt to give OSC that explicit authority [to create a new hearing panel] this academic year.”
Coleman noted that OSC typically “takes the path of least resistance,” which almost always means sending a case to a new hearing panel.
In an article examining the student conduct process in May, Donald Beskind—professor of law who has been serving as a faculty advisor for students going through the process since 1977—said he has observed a pattern in which the appellate process changes when students’ appeals frequently succeed.
“It’s been my general experience that when student conduct results are not to somebody’s liking, the rules change so that that result can’t happen again,” he said.