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A spirit that is not afraid

Truth, justice and the Auburn way: Auburn and other universities restrict legal representation in Student Discipline Hearings

(Kris Sims | Multimedia Editor)
(Kris Sims | Multimedia Editor)

Joshua Strange was a junior studying political science at Auburn University when he was expelled for sexual assault charges in November 2011.
At the time of his expulsion, Strange had two criminal charges pending against him: a misdemeanor for a third-degree assault and a felony for first-degree sodomy, according to his court-obtained defendant history.
After his expulsion, both of the charges were dropped.
Strange's case thrust the University into public light after The Wall Street Journal published an investigative opinion piece Dec. 6, 2013 about his situation. Titled "An Education in College Justice," by James Taranto, it accuses the University of wrongly convicting Strange.
Taranto attributes the expulsion to University administrators giving into pressures from Congress, which he reports threatened to revoke funding from public universities if they did not take a strict enough stance with Title IX infractions.
Title IX is a part of the 1972 education amendments and is most known for enforcing sexual equality within collegiate athletics. Its reach stretches beyond that, however, and addresses 10 major areas within a federally funded educational program that could be vulnerable to sexual discrimination. One of these key areas is sexual harassment. Of all the areas Title IX covers, the issue of sexual harassment has recently received the most attention from the media.
On Friday, April 11, the St. Louis Post-Dispatch reported the University of Missouri failed to act on information about the sexual assault of Sasha Menu Courey, who was a swimmer at Missouri. Courey committed suicide 15 months after she was allegedly raped by two football players during her freshman year. According to the St. Louis Post-Dispatch, Missouri lacked a policy for reporting sexual assault allegations, which is a requirement under federal guidelines.
On Friday, April 4, USA TODAY reported the U.S. Department of Education's Office for Civil Rights opened an investigation of Florida State University. USA TODAY reported an FSU student said she was raped by Winston on Dec. 7, 2013, but the university allowed a lengthy delay to occur before conducting an investigation. OCR will investigate whether FSU's handling of the Jameis Winston rape allegations violated Title IX laws. Winston was a favorite for Heisman trophy winner, which he ultimately won.
The New York Times also published an article on Wednesday, April 16, detailing discrepancies with FSU and the legal system that occurred during the Winston case.
While other universities are being investigated for not complying with Title IX regulations, the attention has turned to Auburn for possibly expelling a student without just cause.


Student Discipline Committee Hearings

Before he could be expelled, Strange had to be tried in a Student Discipline Hearing, which is a private trial overseen by the Student Discipline Committee.
While the committee consists of 13 faculty members and 12 student members, a five-member panel (two students, two faculty members and a committee chair) rotates hearing cases based on who is available and has no prior knowledge of the defendant or plaintiff.
According to Haven Hart, who was not director of student conduct at the time of Strange's trial, but now serves in that capacity, members of the committee are selected through their various representative groups. For example, faculty members are selected and appointed by the faculty senate, and undergraduate student representatives are selected and appointed by the SGA.
Typically, the president of the University selects committee chairs, according to Hart.
During each hearing, the plaintiff and the defendant are allowed to have legal counsel present who can advise them outside the hearing. However, the Auburn University Code of Discipline does not allow legal counsels to speak or participate in any way.
"Because it's a student conduct process and not a court of law, attorneys are not allowed to speak," Hart said.
This leaves the defendant and the plaintiff to present their own evidence, call their own witnesses, cross-examine them and give their own opening and closing statements.


Strange's Hearing before the SDC

Two students, a faculty member from the College of Liberal Arts and a faculty member from the department of fisheries heard Strange's case. A University librarian served as the chair.
Strange was brought to trial before the Student Discipline Committee by an ex-girlfriend, who accused him of sexual battery. She declined to be interviewed for this story.
While the Student Discipline Committee received training through the University, some members of the committee who heard Strange's case Nov. on 7, 2011, said they felt they lacked proper understanding for how to evaluate a case of this caliber.
"It is a very difficult situation to be in as a student on a student discipline committee because it ends up that you're kind of volunteered [to overhear a trial]," said a student who served on the committee that heard Strange's case. The student agreed to speak with The Plainsman on the condition of anonymity,
"I think the difficult part is that if you're not aware of the legal system and how all that works, it can be very frustrating because you can be put in a position to make impactful decisions. I didn't feel like I should be in a place where I should be able to make life-changing decisions for someone. It can be difficult because it's a lot of pressure, and I didn't feel like I had the right to be making those decisions. It's not my place to call that."
A recording of Strange's hearing enforces the claim by the student committee member that the hearing was confusing to those involved. Throughout the recording, an unidentified person can be heard whispering instructions to the chair on how to proceed. Also, panelists repeatedly ask questions that had to be corrected and were then instructed to rephrase the question to be pertinent to the evidence presented.
"It was full of stress, and people's interests were at stake on both sides," said Tim Dodge, the committee chair for Strange's case. "It was an extremely stressful experience because of the nature of the accusation and the potential nature of the sanctions that may be implied. That's all I can say. I can't say anymore."
The hearing concluded with a ruling from the committee that Strange should be expelled from the University for violating the code of student discipline, which prohibits students from threatening and/or committing physical violence against another person.


University's stance

Although a grand jury ruled they did not have enough evidence to convict Strange of a felony level charge, and the third-degree assault charge brought against him was dropped when the accuser failed to show in court, the University was not under obligation to reconsider its decision to expel him.
As per Title IX regulations, the Student Discipline Committee used a lower burden of proof to convict Strange than what is required in a criminal court. By this standard, the evidence only needs to prove the defendant is more than likely guilty or not guilty.
Provisions in the Student Code of Discipline excuse the University from making decisions based on the outcome of a court hearing. The code states, "Proceedings of the University Discipline Committee may be instituted against a student charged with conduct that potentially violates both the criminal law and this Discipline Code without regard to the pendency of civil or criminal litigation in court or criminal arrest and prosecution.
"Determinations made or sanctions imposed under this discipline code shall not be subject to change because criminal charges arising out of the same facts giving rise to violation of University rules were dismissed, reduced or resolved in favor of or against the criminal law defendant."
While the University can make the decision to expel someone who is under investigation for a crime without waiting to hear the court's ruling, the University is under no obligation to reconsider its ruling once the legal outcome has been released.
Similar language can be found in the Code of Student Discipline for the University of Alabama, the University of North Carolina Chapel Hill and Texas A&M University. However, at Alabama a member of the press is allowed to be present during student disciplinary hearings per request of the defendant or plaintiff. At UNC, students are not allowed to hear sexual assault cases, and a member of the media is allowed at all student disciplinary hearings.


"Dear Colleague" Letter

The language indicating the University can act independently of court outcomes was enforced April 4, 2011, eight months before Strange's hearing, by Congress when the Office Civil Rights within the Department of Education issued a Dear Colleague Letter to all educational institutions receiving federal funding.
A Dear Colleague Letter is a way for Congress to officially correspond with other offices about a bill or resolution. The purpose of this Dear Colleague Letter was to reinforce Title IX regulations.
The 20-page letter reminds all entities receiving state funding they must take a firm stance against any sort of sexual discrimination - especially sexual harassment. It reminds recipients to judge all sexual assault cases brought before it using a low burden of proof.
It also reminds them they should not wait for the conclusion of a criminal trial to begin its own disciplinary proceedings.
The OCR states in the letter if it finds a school has not taken necessary steps to respond to sexual harassment or violence, it may "initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation," as is happening in the Winston case at FSU.
Haven Hart, who was not the director of student conduct during the time of Strange's case but has served in student discipline for more than a decade, stated that she could not speak to whether this Dear Colleague Letter added a certain level of pressure to student discipline.
As investigations for Title IX infractions continue to arise across the country, student disciplinary hearings continue to occur and students continue to put in positions to judge these cases.
"You do what you feel like has to be done, whether you agree with it or not," said the student who sat on the discipline committee for Strange's case.


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