Legal Experts Say Ad Board Process Unusual, Unjust

Harvard's Administrative Board has the strengths--but not the safeguards--of a court of law.

For example, when a student makes allegations of rape against another student, the Ad Board, like a court of law, collects evidence and testimony, weighing the facts of the case.

NEWS ANALYSIS

Then, again like a court of law, the Ad Board has the power to brand a student as a rapist and mete out what it deems appropriate punishment.

But, unlike a court of law, it does not allow both sides to question each other, prohibits lawyers from attending its proceedings and places students before a jury of administrators only, not peers.

Because the Ad Board omits these features from its proceedings, legal experts and other schools around the country say Harvard is out of step with higher education in general--and as a result, students sometimes miss out on the chance to get the fairest hearing possible.

"In terms of questions of fair procedures, I actually have not found a school that's worse than Harvard," says Harvey A. Silverglate, a lawyer with the Boston firm Silverglate & Good, who has researched similar procedures at over 400 schools. “It isn’t a rational procedure calculated to uncover truth."

"It's right out of Orwell," he adds. "No union would tolerate having an employee facing discipline in the way Harvard does it."

Ad Board administrators balk at using legal terms to describe their process. They say they seek to educate as well as to punish.

This model was tested last spring, when two undergraduate women charged undergraduate men with rape and sexual assault. Both cases came before the Ad Board, and in both instances it ruled that rape had occurred, according to Dean of the College Harry R. Lewis '68.

In addition, both men, Joshua M. Elster, Class of 2000, and D. Drew Douglas, also Class of 2000, pled guilty in Middlesex County Court to charges of indecent assault (Not Clear Data) and battery and, in Elster's case, rape. Both were sentenced to probation.

The Ad Board asked the students to withdraw and has made recommendations of dismissal to the full Faculty, which has yet to vote on a punishment.

The women assaulted by Douglas spoke publicly last month for the first time about her criticisms of the Ad Board process. She said she felt the Ad Board betrayed her in its failure to recommend expulsion--which, unlike dismissal, is permanent.

"The [Ad Board] system doesn't work. It is flawed. It is archaic and it is not made to deal with cases of sexual assault,"she wrote then in an e-mail message. She says shetook her case to court after the Ad Board failedto adequately punish her attacker.

Part of the Educational Experience

At Harvard, even disciplinary hearings aredesigned to educate, according to administrators.They say the Ad Board proceedings provide a chanceto examine wrongdoing. "There's a punitivecomponent, but it's really designed to beeducational," Lewis told The Crimson last spring.

Lewis says the Ad Board does not need to act asharshly as the judicial system because it relieson students to be open and honest.

"We have an interest in protecting thecommunity and helping students mature," he adds.

But some administrators at other schools say ahearing could never be educational and that amirroring of the procedures of the court systemgives the accused a better opportunity to presenta case.

"Once you get to the hearing, the purpose of ahearing is not educational," says Amelious N.Whyte, assistant to the vice president of studentdevelopment at the University of Minnesota- TwinCities (UMTC).

Disciplinary processes at many schools such asUMTC and Cornell University imitate the legalsystem.

"Our code is very similar to a criminalsystem," says Linda Falkson, acting judicialadministrator at Cornell. "I used to be aprosecutor. It's very similar."

Silverglate, who says he has advised dozens ofstudents going before the Ad Board in the past,says he is skeptical that the investigation of acrime can be educational for the student beinginterrogated.

"How can this be an educational process? You'retrying to find out facts," he says. "Once theyfind somebody guilty by a process that is fair andrational then I can understand taking educationinto account in deciding a punishment."

Gathering the Evidence

While few, if any, disciplinary boards at otherschools have the right to subpoena documents, mostrequire an elaborate interview process to dig upthe facts--interviewing the accused, the accuserand other witnesses in a way similar to crossexamination in the court system.

But Harvard permits only the members of the AdBoard to ask questions, preventing the accused andthe accuser from directly interrogating eachother.

It relies mainly on written statements from thecomplainant and the defendant. Both students havethe opportunity to respond to the writtenstatements of the other.

"The people reading your statement tend to seethings that happen here as essentially educationalin nature, and as grist for the learning mill,"the user's guide to the Ad Board says.

"While a court of law may be interested solelyin establishing guilt or innocence, the Ad Boardwants to know whether or how you have grown orchanged as a result of your experience," it goeson to say.

In more complicated cases, like sexual assaultor rape, the Ad Board often first convenes asubcommittee to collect evidence and submit awritten report to the full group.

But Lewis says even these subcommittees,without the ability to subpoena any documents,lack the avenues for evidence-gathering availableto courts.

The accused and the accuser have the option tomake personal appearances before the subcommittee,but they must appear separately and cannot respondin person to each other outside of their originalstatements.

The subcommittee may also meet with otherpeople involved with the incident or witnesses. Aswith the defendant and accuser, only thesubcommittee members can interrogate thesewitnesses. Lewis says there are usually threemembers on a subcommittee.

"That is concerning," says George Fisher,associate professor at Stanford Law School. "Theaccused has a strong knowledge of the facts whichmakes it likely that the accused will be the bestcross examiner, and the accused has a greaterinterest in the process."

"It does seem outside Anglo-American norms toforbid the accused to have a hard in thequestioning either directly or through arepresentative," he adds.

While the subcommittee hears the evidence, thefull Ad Board still votes on a verdict. Themembers of the subcommittee present the evidencein a written report which summarizes the relevantinterviews in their own words.

"The subcommittee is almost invariably underthe thumb of the dean's office," Silverglate saysof his research into Harvard's procedures. "Theevidence is shifted through the prism of thesubcommittee."

He adds that interviewing witnesses in personis an essential step for the entire Ad Board indiscovering the truth of what happened.

"They don't understand there are things theymiss. How somebody puts something is veryimportant. To tell if someone is telling the truthyou have to look at them," he says. "You canobserve nervous twitches. You can observe bodylanguage. You lost all that by having thesubcommittee."

"Cross-examination is the best process yetknown for uncovering somebody who's lying,"Silverglate says.

The students are given the opportunity to readthe subcommittee report before it goes to the fullBoard.

"So if a student feels that the report has cometo the wrong conclusion, or has been influenced insome way by personal biases of the subcommitteemembers, that can all be written up by thestudents and would be shared, along with thereport, with the full Board," Lewis wrote in anemail message.

Stanford's six-person Judicial Panel allowsboth students to question each other and thewitnesses they chose to call, says Suzanna Mak,Stanford's judicial officer.

At Yale University, Secretary of the ExecutiveCommittee Jill Cutler says that the committeeinterviews all people either the accused or theaccuser feels are necessary to make their cases.Both students must attend the hearing.

At Princeton, both the accused and the accusercome together before a three-member subcommitteeof the Faculty-Student Committee on Discipline.

"The accused student has the right to heareverything that is presented to the committee,"says Kathleen Deignan, assistant dean of students."Being available to expand on what you've written[in a statement] is an important feature."

At the University of Massachusetts at Amherst(U. Mass.), both the accused and the accuser canappear before the judicial hearing board and canrequest witnesses. Both students and the board canquestion all witnesses.

"I think that in order to [be able to defendyourself], you need to be able to hearspecifically what you are being accused of andthen be able to ask questions directly," saysJolene M. Crook, special assistant to the dean ofstudents at U. Mass.

Is there a Lawyer in the House?

Harvard seems to be one of the few top-rankedschools in the country whose disciplinary boarddoes not permit lawyers to attend hearings.

"Lawyers have no role in the Ad Board processand may not attend Board meetings," Lewis wrote inan e-mail message. "The Board is a Facultysubcommittee, set up to administer its rules, andis not a court or an approximation of a court."

Criminal law experts say with cases of suchserious import as rape or sexual assault, there isno excuse for expecting a college student toformulate a defense and to have the legal savvy toanswer each question.

"The idea that an Ad Board can find someoneguilty of rape without counsel...that's wrong,"says Steven B. Duke, a professor specializing incriminal procedure at Yale Law School. "Theyshould have the right to [have] counsel presentand participating."

Fisher says that legally, anything the accusedsays in an Ad Board proceeding could later be usedagainst him or her in court. He says a lawyershould be present to prevent the accused frommaking incriminating statements.

"I think there are real reasons to be concernedwhen you combine an absence of lawyers and aninvitation that the defendant produce astatement," Fisher says.

At Cornell, the defendant's lawyer plays anactive role in the process, questioning andcross-examining witnesses for the other side,according to Falkson.

Before Yale's disciplinary board, "in a casewhere the charge is rape or assault we advise thestudent...that it is their right to bring a lawyerinto the room," Cutler says. "We have to protectthe civil rights of the accused."

At UMTC the accused can chose to have a lawyerpresent the case. The university would then alsoprovide a lawyer for the accuser.

Judged By Peers

Going before the Ad Board means facing a panelof administrators, not of peers. At many otherschools, students sit on the disciplinary board.

"By and large, students are more attached tothe world than college administrators and evencollege professors," Silverglate says. "Studentscome from the real world, and they're going backinto it...[The administration] is isolated."

"If you're being judged, you're entitled tohave your peers as the jury," Silverglate says.

At Cornell three students, one staff member andone faculty member sit on the Hearing Board.

At Stanford, four students and two members ofthe faculty or staff make up the Judicial Panel.

The U. Mass. Judicial Hearing Panel, the YaleExecutive Committee and the UMTC disciplinarypanel are all composed of students, faculty andstaff.

"It's fairer to the student if they're beingjudged by their peers," Whyte says.

"For a student your community is not so much asadministrators as the students," Falkson says.

The Verdict

Harvard administrators say admissions fraud isthe only reason the College has expelled studentsin recent decades. The Ad Board can recommendexpulsion, but the decision then which requires avote of the full Faculty.

The alternative--dismissal--means separationfrom the College for usually more than five yearswith the option to petition for readmission, amove that requires a vote of the full Faculty. TheAd Board also recommends dismissal to the Faculty.

The Ad Board has recommended dismissal, but notexpulsion, in both of the recent sexual assaultcases.

"I think that the University should expelthem," says Roderick Macleish Jr., an attorney whohas advised 12 students at the College who wentbefore the Ad Board. "That person no longerdeserves to be part of the Harvard community."

Many other Universities, including U. Mass.,UMTC, Cornell, Princeton, Yale and Stanford, arewilling to use expulsion to punish students guiltyof the most serious crimes.

"My guess is that it would be a suspension orexpulsion [if a student committed sexual assaultor rape]," Whyte says. "We're taking steps toprotect the University community.

Part of the Educational Experience

At Harvard, even disciplinary hearings aredesigned to educate, according to administrators.They say the Ad Board proceedings provide a chanceto examine wrongdoing. "There's a punitivecomponent, but it's really designed to beeducational," Lewis told The Crimson last spring.

Lewis says the Ad Board does not need to act asharshly as the judicial system because it relieson students to be open and honest.

"We have an interest in protecting thecommunity and helping students mature," he adds.

But some administrators at other schools say ahearing could never be educational and that amirroring of the procedures of the court systemgives the accused a better opportunity to presenta case.

"Once you get to the hearing, the purpose of ahearing is not educational," says Amelious N.Whyte, assistant to the vice president of studentdevelopment at the University of Minnesota- TwinCities (UMTC).

Disciplinary processes at many schools such asUMTC and Cornell University imitate the legalsystem.

"Our code is very similar to a criminalsystem," says Linda Falkson, acting judicialadministrator at Cornell. "I used to be aprosecutor. It's very similar."

Silverglate, who says he has advised dozens ofstudents going before the Ad Board in the past,says he is skeptical that the investigation of acrime can be educational for the student beinginterrogated.

"How can this be an educational process? You'retrying to find out facts," he says. "Once theyfind somebody guilty by a process that is fair andrational then I can understand taking educationinto account in deciding a punishment."

Gathering the Evidence

While few, if any, disciplinary boards at otherschools have the right to subpoena documents, mostrequire an elaborate interview process to dig upthe facts--interviewing the accused, the accuserand other witnesses in a way similar to crossexamination in the court system.

But Harvard permits only the members of the AdBoard to ask questions, preventing the accused andthe accuser from directly interrogating eachother.

It relies mainly on written statements from thecomplainant and the defendant. Both students havethe opportunity to respond to the writtenstatements of the other.

"The people reading your statement tend to seethings that happen here as essentially educationalin nature, and as grist for the learning mill,"the user's guide to the Ad Board says.

"While a court of law may be interested solelyin establishing guilt or innocence, the Ad Boardwants to know whether or how you have grown orchanged as a result of your experience," it goeson to say.

In more complicated cases, like sexual assaultor rape, the Ad Board often first convenes asubcommittee to collect evidence and submit awritten report to the full group.

But Lewis says even these subcommittees,without the ability to subpoena any documents,lack the avenues for evidence-gathering availableto courts.

The accused and the accuser have the option tomake personal appearances before the subcommittee,but they must appear separately and cannot respondin person to each other outside of their originalstatements.

The subcommittee may also meet with otherpeople involved with the incident or witnesses. Aswith the defendant and accuser, only thesubcommittee members can interrogate thesewitnesses. Lewis says there are usually threemembers on a subcommittee.

"That is concerning," says George Fisher,associate professor at Stanford Law School. "Theaccused has a strong knowledge of the facts whichmakes it likely that the accused will be the bestcross examiner, and the accused has a greaterinterest in the process."

"It does seem outside Anglo-American norms toforbid the accused to have a hard in thequestioning either directly or through arepresentative," he adds.

While the subcommittee hears the evidence, thefull Ad Board still votes on a verdict. Themembers of the subcommittee present the evidencein a written report which summarizes the relevantinterviews in their own words.

"The subcommittee is almost invariably underthe thumb of the dean's office," Silverglate saysof his research into Harvard's procedures. "Theevidence is shifted through the prism of thesubcommittee."

He adds that interviewing witnesses in personis an essential step for the entire Ad Board indiscovering the truth of what happened.

"They don't understand there are things theymiss. How somebody puts something is veryimportant. To tell if someone is telling the truthyou have to look at them," he says. "You canobserve nervous twitches. You can observe bodylanguage. You lost all that by having thesubcommittee."

"Cross-examination is the best process yetknown for uncovering somebody who's lying,"Silverglate says.

The students are given the opportunity to readthe subcommittee report before it goes to the fullBoard.

"So if a student feels that the report has cometo the wrong conclusion, or has been influenced insome way by personal biases of the subcommitteemembers, that can all be written up by thestudents and would be shared, along with thereport, with the full Board," Lewis wrote in anemail message.

Stanford's six-person Judicial Panel allowsboth students to question each other and thewitnesses they chose to call, says Suzanna Mak,Stanford's judicial officer.

At Yale University, Secretary of the ExecutiveCommittee Jill Cutler says that the committeeinterviews all people either the accused or theaccuser feels are necessary to make their cases.Both students must attend the hearing.

At Princeton, both the accused and the accusercome together before a three-member subcommitteeof the Faculty-Student Committee on Discipline.

"The accused student has the right to heareverything that is presented to the committee,"says Kathleen Deignan, assistant dean of students."Being available to expand on what you've written[in a statement] is an important feature."

At the University of Massachusetts at Amherst(U. Mass.), both the accused and the accuser canappear before the judicial hearing board and canrequest witnesses. Both students and the board canquestion all witnesses.

"I think that in order to [be able to defendyourself], you need to be able to hearspecifically what you are being accused of andthen be able to ask questions directly," saysJolene M. Crook, special assistant to the dean ofstudents at U. Mass.

Is there a Lawyer in the House?

Harvard seems to be one of the few top-rankedschools in the country whose disciplinary boarddoes not permit lawyers to attend hearings.

"Lawyers have no role in the Ad Board processand may not attend Board meetings," Lewis wrote inan e-mail message. "The Board is a Facultysubcommittee, set up to administer its rules, andis not a court or an approximation of a court."

Criminal law experts say with cases of suchserious import as rape or sexual assault, there isno excuse for expecting a college student toformulate a defense and to have the legal savvy toanswer each question.

"The idea that an Ad Board can find someoneguilty of rape without counsel...that's wrong,"says Steven B. Duke, a professor specializing incriminal procedure at Yale Law School. "Theyshould have the right to [have] counsel presentand participating."

Fisher says that legally, anything the accusedsays in an Ad Board proceeding could later be usedagainst him or her in court. He says a lawyershould be present to prevent the accused frommaking incriminating statements.

"I think there are real reasons to be concernedwhen you combine an absence of lawyers and aninvitation that the defendant produce astatement," Fisher says.

At Cornell, the defendant's lawyer plays anactive role in the process, questioning andcross-examining witnesses for the other side,according to Falkson.

Before Yale's disciplinary board, "in a casewhere the charge is rape or assault we advise thestudent...that it is their right to bring a lawyerinto the room," Cutler says. "We have to protectthe civil rights of the accused."

At UMTC the accused can chose to have a lawyerpresent the case. The university would then alsoprovide a lawyer for the accuser.

Judged By Peers

Going before the Ad Board means facing a panelof administrators, not of peers. At many otherschools, students sit on the disciplinary board.

"By and large, students are more attached tothe world than college administrators and evencollege professors," Silverglate says. "Studentscome from the real world, and they're going backinto it...[The administration] is isolated."

"If you're being judged, you're entitled tohave your peers as the jury," Silverglate says.

At Cornell three students, one staff member andone faculty member sit on the Hearing Board.

At Stanford, four students and two members ofthe faculty or staff make up the Judicial Panel.

The U. Mass. Judicial Hearing Panel, the YaleExecutive Committee and the UMTC disciplinarypanel are all composed of students, faculty andstaff.

"It's fairer to the student if they're beingjudged by their peers," Whyte says.

"For a student your community is not so much asadministrators as the students," Falkson says.

The Verdict

Harvard administrators say admissions fraud isthe only reason the College has expelled studentsin recent decades. The Ad Board can recommendexpulsion, but the decision then which requires avote of the full Faculty.

The alternative--dismissal--means separationfrom the College for usually more than five yearswith the option to petition for readmission, amove that requires a vote of the full Faculty. TheAd Board also recommends dismissal to the Faculty.

The Ad Board has recommended dismissal, but notexpulsion, in both of the recent sexual assaultcases.

"I think that the University should expelthem," says Roderick Macleish Jr., an attorney whohas advised 12 students at the College who wentbefore the Ad Board. "That person no longerdeserves to be part of the Harvard community."

Many other Universities, including U. Mass.,UMTC, Cornell, Princeton, Yale and Stanford, arewilling to use expulsion to punish students guiltyof the most serious crimes.

"My guess is that it would be a suspension orexpulsion [if a student committed sexual assaultor rape]," Whyte says. "We're taking steps toprotect the University community.