by Benjamin Kepple
The Code of Student Conduct is not exactly one of students' favorite policies at the University of Michigan. However, this did not prevent 30 individuals from taking the first step to becoming Code panelists. By doing so, they joined the pool of students that may someday preside over a Code arbitration hearing, acting in a combination of roles as lawyer, judge, jury, and executioner.
The ten-hour long training session appeared to be taxing on some of the students, and near the end of the session, some were looking quite fatigued: holding their heads, rubbing their eyes, and generally looking less bright than in the beginning of the session. Even a University official mentioned that they hoped to be done before or by six oclock, the scheduled ending time for the training session.
Mary Lou Antieau, Resolution Coordinator for the Office of Student Conflict Resolution (OSCR), a subdivision of the Office of Student Affairs, was in charge of the training session and assisted by various members of her office. The panelists-in-training were selected by various members of campus student governments, most coming from the Michigan Student Assembly (MSA) and the LSA Student Government (LSA-SG). Many students also volunteered to join the panelist pool. It is interesting to note that out of 49 new students invited, that only 30 actually came to the first portion of training session. As this was the only such training session offered, their absence disqualifies them from being Code panelists until they can complete the training session, presumably next term or at another later date.
The training session began with a short speech from Maureen Hartford, Vice President of Student Affairs. During her speech, Hartford stressed that "one of the things that makes a University Community is discipline." with the Code being "the beginning of discipline", with academic guidelines imposed by the various colleges and schools as a continuation of that discipline. She also made note of the fact that such a process must be fair, and quoted the Magna Charta to that effect: "To none will we sell, deny, or delay the rights of justice." She ended by thanking the students for participating in the training process.
The training session went on to cover various aspects of the skills necessary to be effective Code panelists. First, Sean McCabe-Plius, a 3rd year doctoral student and graduate intern in the Office of Student Affairs, explained the need for diversity throughout the Code process. He stated that the Code process "involved diversity at every level." and defined diversity as "the state or quality of being different, not alike." He also stated that due to the backgrounds of the people involved in the Code process (and not just the panelists), that it was very likely everyone would see things in a different light. McCabe-Plius also emphasized the importance of teamwork on the panel and the availability of supplemental training if it was needed by any of the prospective panelists.
Secondly, Barbara Olender, former assistant to the Resolution Coordinator, discussed many of the terms used and the information available to the Code panelists during the Code process. She stressed the importance of being able to identify just what the main issues were in a case. She said that the panelists could expect "potentially interesting situations" and that overall, working on a case could sometimes be "extremely complex and challenging."
The terminology used under the Code is rather simple. The person making the complaint is known as the complaining witness. The person who the complaint is directed against is known as the accused student. A witness is any person who can provide information in regards to the case; hence, since the person filing the complaint may be also to provide information, he is known as a complaining witness instead of a different term.
Students charged under the Code, if they and the complaining witness do not choose to have their differences settled via a mediator (or if the situation makes mediation impractical or impossible) may choose to have their case settled by either a Resolution Officer (RO) or a Student Resolution Panel. During such an arbitration by the Student Resolution Panel, the Panel will be assisted by an RO, with information being provided and submitted by the Resolution Coordinator. Both parties involved may have legal assistance and a legal advisor present, but not legal representation.
Olender stressed that panelists must be prepared, neutral, thoughtful, and courteous to the accused student(s) and the complaining witness throughout the arbitration hearing. In relatively straightforward cases, panelists would be given three days to examine the "case file" of a case going to arbitration. They would have to visit the OSCR on either the first or second of those days, and fully prepare for a hearing. In complex cases, more than three days would be given. If a panelist could not view the files, it would be their responsiblity to contact the OSCR so that a new panelist could be assigned. A case file would usually contain the complaint, the response to the complaint by the accused, letters from the University to the accused, witness statements, and various reports (police, medical, incident, etc.). Such a case file is kept in the OSCR and is confidential; it does not leave the office and only involved panelists and members of the OSCR may view it.
Olender also told the participants to be vigilant in their search for bias. Is a certain witness with-holding information? Is a witness a friend of anyone involved, or do they know someone involved? The panelists were told of the need to ask probing but courteous questions about a witness, in order to cut through any irrelevant information. Panelists were also told that if they felt uncomfortable about a case or a decision, to let the office know and they would find a new panelist to take their place.
Next, Susan Eklund, Associate Dean of the Law School, spoke to the students about how to formulate questions for a Code hearing. She emphasized the need to be fair and impartial, and strongly advised against acting as if one is Perry Mason. She continued to state that a panelist should not cut off the witness, should not joke or be disrespectful, and should not put words of the mouth of a witness, hoping to trip them up or catch them in a self-contradiction. A panelist also should not use leading or embedded questions when questioning a witness. Eklund advised panelists to ask questions using Emily Post as a standard: ask questions with dignity and respect. She also strongly advised panelists to use open ended questions, to explore important topics, and to ask questions for the purpose of getting as much relevant information as possible.
After lunch, Antieau again spoke, this time on the determination of responsibility, facts, and truth. She pointed out that facts do not make truth in itself; but rather that facts must be presented in the case that supports the panel's belief as to what is true. In order to state that a violation of the Code took place, the panel must subject their belief to the clear and convincing standard. The "bottom line" of this standard, is as follows:
-- it is highly probable that it (the charge) is true.
--the facts are clear and unambiguous and that a violation (of the Code) took place.
--one is more than 51% sure that a violation occured.
But for one to be actually be found responsible under the Code, the entire panel of students must agree that a violation took place. This is in contrast to most colleges, where only a majority of students must agree that a violation took place to find the accused guilty.
The last major part of the day involved McCabe-Plius speaking on the responsibility of the panel when it came to actually sanctioning a student. He stated that the sanction must fit the violation, and that the sanction must be reflective of the University Community. Panelists should try to distinguish between the act and the accused.
McCabe-Plius continued to say that sanctions should be positive, instead of negative, and should be used to educate the student to show him what he did wrong. While he admitted that an "educational sanction" seemed like somewhat of an oxymoron, he felt that a sanction should be used to "re-educate" a student and to teach him what he did wrong, instead of punishing him. McCabe-Plius then went on to cite a number of cases where students sanctioned under the Code had written the OSCR and said that their sanction had helped them see what they did wrong and why; however, all the cases offered had the sanctioned student reacting in a positive way to their sanction.
Interestingly, the number of cases actually tried under various incarnations of the Code (since 1993) is smaller than one would think. So far, only 59 students have been tried and sanctioned under the Code or the SSRR as of Winter, 1996. 19 were sanctioned for "physical harming", 1 for sexual assault, 3 for sexual harassment, 5 for hazing, 2 for alcohol violations, 7 for theft, 13 for destruction of property, and 4 for failing to comply with the Code. However, under federal guidelines for Codes of Student Conduct, a Code only must deal with sexual assault and harassment, along with drug and alcohol abuse.
At the end of the day, Antieau reminded the panelists of their responsibility that they were taking on, and explained that in the extremely unlikely case that a disaffected student would sue the individual panel members of the Student Resolution Panel, they would be provided with free legal representation and the University would pay any damages levied against them--if the panelists followed the Code and the procedures outlined in it. She also stated that only accused students in such an action could speak to the press--not panelists or the complaining witness, even after the action was completed.
One student, David Finkbeiner, an Engineering sophomore, "felt that (the training) was adequate. Without a doubt, the most valuable part (of training) will be the mock arbitration." He went on to say that he didn't feel prepared but that "he needed a chance to practice."
Another student, Mike Pniewski, an Engineering senior, agreed that the mock arbitrations would be helpful. He was pleased that "It's not just a majority anymore." that is able to decide guilt or innocence, but that the whole panel must agree.
As the students filed out of the Kuenzel room at around 5:45 that night, many of them looked relieved that the long training session was done. The next step for the panelists would be to sit through two mock arbitrations on either Tuesday, Wednesday, or Thursday of the following week, and after that their training would be complete.
Throughout the training session, each speaker told the would-be panelists to ask questions if they were confused, of the availability of supplemental training if trainees felt they needed additional resources, and of the availability of resources and staff at the OSCR if they had any questions. Antieau indicated that the new training session was designed using the feedback of many of the students who had gone through the old training program, and that the training session had been improved from previous times.
While the Code is still despised by civil libertarians on campus as infringing on the rights of students, the Administration cannot be blamed for not trying to create a well-trained student panelist pool, and it is highly probable they will succeed in doing so. It seems the Administration has realized that if they have a Code, they are now going to have to follow it to the letter. MR