Report on Undergraduate

Judicial Policy

The DSG Executive Board, members of the DSG Cabinet, and

independent students contributed to this memorandum. DSG
President Paul Slattery ultimately prepared the document.

09/17/2007
 Duke University
DU R HA M
NO R T H C A R O L IN A
27 70 8-614 3

D U K E S TU D E N T G O VE R N M E N T B O X 96 14 3
O F F IC E TE LE P H O NE (9 19 ) 72 4 - 10 4 7
B RY A N C E N TE R 0 8 p aul . s l at te ry @d uk e .e d u

Report on Undergraduate Judicial Policy

In Western society, universities bear the awesome responsibility of being the primary
institution responsible for the creation, retention, and dissemination of knowledge. By its
very nature, this mandate calls for a degree of freedom, openness, and experimentation
that would be inappropriate for nearly any other institution. It is therefore a prerogative of
a university to cultivate exactly that sense of freedom, openness, and experimentation.

Cultivating this culture is not an easy task. At the very least, individuals must feel their
place at the university is reasonably secure. However, this alone is not sufficient. The
vitality of the universitys intellectual community is dependent upon the rigorous
participation of its members. Individuals will only participate to the extent that they both
identify with the cardinal values of the institution and feel they are valued members of
the community. Individuals must also feel that, in participating, they will be protected
from a concise and clear set of extreme behaviors. In short, a university must engender a
community that finds a balance between excessive repression of experimentation and
outright anarchy.

In this framework, the universitys student disciplinary system has four special burdens.
First, it describes the boundary conditions of the community, meaning the behaviors and
processes that may remove a student from the university. Second, it articulates the basic
meaning of citizenship in the community through the rights and protections it affords.
Third, it fairly resolves conflicts between community members and disincentivizes
behaviors that would disrupt the universitys educational mission.

Fourth and finally, the disciplinary process will hopefully facilitate a meaningful
internalization of the universitys values. This is delicate territory, and careless
approaches to this burden place all the others at risk. Universities are not in the business
of manufacturing students in their own image. However, in its highest form, a university
communicates its cardinal values to the next generation of thinkers in a way that is so
compelling that the students accede to them of their own accord.

It is evident that all students do not experience the disciplinary process in the same way.
However, there is insight to be gained from walking through how each of three categories
of students those never adjudicated, those adjudicated for transgressions they were
innocent of, and those adjudicated for transgressions they committed are affected by it.

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Here it is fruitful to allow the analysis slide in and out of the specific context of Duke
University.

The disciplinary process is not meaningless for students who are never adjudicated
even if their relationship with it is entirely unidirectional. On one level, these students
passively receive any message inherent in the judicial code through the university
bulletin, the experiences of their peers, and the occasional story in the Chronicle. They
learn of the processes by which they might be removed from the university, the degree to
which their institution offers them rights, and the tone in which the university chooses to
articulate these policies. This message is not trivial. It reflects some of the core values of
the institution and, in the most direct way possible, the way in which it conceptualizes its
students relationship to the university. At the very least, students should feel free to
experiment and explore within reasonable bounds without fear for their place at Duke.

On another level, these students are sent a message by the degree of openness and
transparency in undergraduate disciplinary policy. At Duke, the vast majority of students
have no direct or representational purchase on the undergraduate disciplinary system.
They have no role in either the formation or implementation of disciplinary policy
policy that is supposed to be The Community Standard in Practice.1 If the policy were
truly of communal origin, truly an outcropping of the standards of the student
community, it would give the undergraduates a sense of ownership over their
environment. It would not only create a sense that they were participants in a community
of their own making, but also place on them a significant burden of self-reflection. Given
a role in holding their peers accountable to the standards of the community, students
would be far more likely to hold themselves to it as well.

The second subset of students includes those who are innocent of any policy violation but
are adjudicated. Their sense of security, their place in the community, and the validity of
the universitys values must be protected. This can be accomplished both through
prevention and the provision of procedural rights. By way of prevention, the standard for
initiating an investigation or hearing must be set high enough to minimize the number of
students drawn into this subset. Moreover, it is imperative that the standard for conviction
be set high enough that extremely few students are wrongly convicted. It is antithetical to
everything the University stands for to extricate innocent students from the community.

Procedural rights are critical for an innocent student facing adjudication not only to
prevent wrongful convictions but also to preserve their sense of a fair process. These
students should be given every opportunity to demonstrate their innocence. Affording
these rights may be time consuming, but expediency cannot justify denying innocent
students their right to a fair hearing, the presumption of innocence, and ultimately, their
place at Duke. Moreover, these students must feel they were treated fairly throughout the
process to prevent their divestment from the community. No innocent student should
walk away from the process feeling they were lucky to have escaped conviction or

1
The name of the 07-08 Bulletin.

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harassed by the university. This is only possible given stringent adherence to a clear and
comprehensive set of procedural rights.

The final subset of students includes those who are culpable for a violation of university
policy and are adjudicated. The disciplinary process must aspire first to prevent
recurrence (thus protecting the community) and second to compel these students to reflect
upon and internalize the negative consequences of their actions. The disincentive of
punishment serves the first aspiration. The second aspiration is more complex. The
standard line for the Office of Judicial Affairs, which has systematically expunged
procedural rights from its disciplinary policy since 1999-2000,2 has been that these rights
inhibit the educational process. They purportedly encourage students to focus on how to
get off rather than recognize and admit the moral significance of their actions.

Even if it is accepted that Judicial Affairs has an independent educational mission beyond
simply disincentivizing destructive and disruptive behavior, there are two problems with
the educational justification. First, any disciplinary process that could lead to
inconvenience or even expulsion will involve a component of gamesmanship or at least
optimization. This is inexorable given rational actors. The question is the nature of the
optimization. Given a system with procedural rights, students are encouraged to hold the
university to the letter of its policy and rely upon the rights and protections afforded to
them. This is by no means incommensurate with genuine contrition. Given the
universitys educational system aimed at articulated contrition, students are encouraged
to play to that system, regardless of whether or not they are contrite. There is no
compelling reason incentivizing professed contrition increases genuine contrition. In fact,
given that a student isnt contrite, teaching them to disingenuously profess their regret
and self-reflection is far more onerous than teaching them to exercise their right to remain
silent.

Second, there is a way in which the nature of the disciplinary process affects the degree
to which a student feels contrition, but it has little to do with the student articulating their
regret to Judicial Affairs. A student will internalize the consequences of their actions to a
much greater degree if they feel the disciplinary process was fair and appropriate. A
student granted the presumption of innocence and the dignity of procedural protections
will have little choice but to face responsibility for their own actions. A student denied
these fundamental protections and forced to prostrate themselves in front of a committee
to minimize his or her sentence, will likely walk away angry at the process and the
university. This leaves little space for self-examination or reintegration into the
community.

There is an educational benefit for all three subgroups of students and the university at
large if the disciplinary process is perceived as fair, legitimate, and dignified. There is an
educational detriment to all three subgroups of students and the university at large if the
process is not perceived as fair, legitimate, and dignified. The task now is to
systematically examine where Duke stands.

2
See attached spreadsheet.

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The following spreadsheet was prepared from Dukes bulletins and the bulletins of peer
institutions. It reflects the rights specifically allocated to students in the texts of those
bulletins. The only deviation from this methodology is the Duke in Practice column.
This was added after conversations with the Dean of Judicial Affairs in which he claimed
that students were offered rights in addition to those found in this research. The
additional rights fell into three categories: Judicial Affairs practices not articulated in the
bulletin, Judicial Affairs practices contradicted by the bulletin, and reinterpretations of
the loose text of the bulletin to cover clearly defined rights offered by other institutions.
In all instances, the disputed rights are marked in the Duke in Practice column, and the
actual policy in the bulletin is included in the row above or below. Lastly, when this
process began, the 07-08 bulletin had not yet been released. Hence, the 06-07 bulletin
was used. No relevant alterations have been made.