Department of Student Life

1. Hearing Board Training Department of Student Life Michigan State University

2. Welcome Congratulations on your appointment as a member of one of our many student hearing boards! Hearing boards are an integral part of the University’s governance structure and are a reflection of core democratic values. Over the term of your appointment, you will play a critical role in ensuring that student’s rights and responsibilities are upheld, and that the University supports an environment that is conducive to learning.

3. Expectations & Guidelines Board members are expected to: • Actively and consistently participate in all board business • Keep student and hearing information confidential • Comply with all university regulations and policies • Avoid conflicts of interest (i.e., can you be fair and impartial) Board members are encouraged to: • Assume good intentions of each other • Treat each other with unconditional positive regard • Seek first to understand, then to be understood • Focus on alleged behaviors • Seek consensus

4. Values and Principles A foundational paradigm

5. Higher Education “The basic purposes of the University are the advancement, dissemination, and application of knowledge.” [the “AFR”] Knowledge is defined as “the sum of what is known: the body of truth, information, and principles … .” [Merriam-Webster] In other words, our purposes are to search for the truth, and then to share it with all.

6. A Community of Scholars Michigan State University is comprised of faculty, staff and students, all of whom must be committed to our purposes. “The most basic condition for the achievement of these purposes is freedom of expression … [for] without this freedom, effective sifting and testing of ideas cease … and learning [is] stifled”.

7. Freedom & Order However, “… absolute freedom in all aspects of life means anarchy, just as absolute order means tyranny. Both … are antithetical to the purposes and character of the University.” - [the “AFR”] Therefore, our responsibility is to support an environment which strikes a balance between freedom and order.

8. Student Rights & Responsibilities (SRR) MSU has codified the principles for balancing freedom and order in a document known as “Academic Freedom for Students at Michigan State University (aka, the “AFR”): “… the student’s most essential right is the right to learn …”. “… [e]ach right of an individual places a reciprocal duty [responsibility] upon others … to permit the individual to exercise the [same] right …”. … [t]he University has a duty to provide for the student those privileges, opportunities, and protections which best promote … learning…”.

9. Issues What if rights and responsibilities conflict? Is there a hierarchy to these rights and values? What’s the difference between rights and privileges? How do we effectively sift through the issues? Who does the sifting? The answers to these questions begin with an understanding of core democratic values.

10. Core Democratic Values The United States Constitution establishes the following core values: Individual rights - life, liberty and the pursuit of happiness Inclusion – respect for individual rights & differences Truth, justice and equality Popular sovereignty – majority politics Constitutional government– separation of powers with checks and balances

11. Core Democratic Values (cont.) In many ways, the mere existence of hearing boards reflect a commitment to these core democratic values. Hearing boards ... serve as a check and balance against arbitrary and capricious uses of power. seek the truth, justice and equal treatment in all matters. ensure that all students’ rights and responsibilities are honored thru due process and the enforcement of community standards.

12. Community Standards As a part of its duty to provide students with the “opportunities, and protections which best promote learning”, the faculty, staff and students have established community standards for behavior, better known as policies and regulations. The University has provided a mechanism for members of the community to challenge the behavior of its community members. That mechanism is called the student conduct system.

13. Student Conduct System The student conduct system provides a means of addressing allegations that students have violated University standards for personal conduct, and protects student rights against infringement by members of the University community.  This system is codified in a set of due process protections outlined in Spartan Life and a variety of University documents.

14. Due Process Review What is due process? “An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual” [American Heritage]. Put another way … Due process is the process we say is due someone accused of wrong doing.

15. Due Process Foundations US Constitution – 14th Amendment “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” What does this mean? For MSU, it means that students may not be removed arbitrarily or without due process.

16. Legal Due Process Requirements Case Law* has delineated due process rights for students accused of violating University policy. As such, students have the right to: • Receive a written statement of charges before a hearing; • Be heard by a person with the authority to take disciplinary action; • inspection of any exhibits that the college intends to submit in advance of the hearing; • An advisor during a hearing; • Present their own version of the facts, including witnesses; * See bibliography for list or relevant case law.

17. Legal Due Process (cont.) … students have the right to: • Hear evidence presented against them and to personally question adverse witnesses; • Have the adjudication based solely on the information presented in the hearing; • Receive a written explanation of rationale or findings of fact; and, • Make a copy of the record of the hearing at his or her expense (there are some limitations imposed here in order to comply with federal privacy restrictions).

18. MSU Due Process Part I A general overview

19. Complaints ALL STUDENT CONDUCT CASES BEGIN WITH A FORMAL COMPLAINT. Who can file a complaint? • Only faculty, staff and students of Michigan State University can file a formal complaint. How are complaints filed? • All complaints are filed on-line through a system called Advocate. What is done with complaints? • They are reviewed by Student Life employees to ensure that the complaint has been properly submitted, that the University has proper jurisdiction, and that there are no obvious, objective problems to be resolved before processing.

20. Adjudication Flowchart – Part I STEP 1 - ADMINISTRATIVE MEETING (INFORMAL) • Respondent meets with an administrator to learn about his/her rights & responsibilities and to choose a resolution pathway. • Option 1) ADMIT to an administrator • Option 2) ADMIT to a hearing board • Option 3) DENY and request an administrative hearing • Option 4) DENY and request a board hearing STEP 2a – SANCTIONING MEETING (INFORMAL) • Option 1) Administrator explores impact, learning, and history & renders a sanction • Option 2) Board explores impact, learning, and history & renders a sanction STEP 2b – DISCIPLINARY HEARING (FORMAL) • If OPTION 3) administrator facilitates a formal hearing to determine responsibility • If OPTION 4) a board facilitates a formal hearing to determine responsibility • IF RESPONSIBLE, a sanction is rendered by administrator or board

21. Adjudication Flowchart – Part II STEP 3 – APPEALS TO THE UNIVERSITY STUDENT APPEALS BOARD (USAB) • The respondent and complainant may appeal an adverse decision (formal or informal) to the University Student Appeals Board (USAB) on the grounds that there was a conflict of interest or that the board did not follow proper procedures. The respondent may also appeal a finding of responsibility and/or that the sanction was too harsh. In response to an appeal, the USAB may: • Affirm the original decision • Modify the original decision • Reverse the original decision • Return the case to the original decision body for review STEP 4 – APPEAL TO Vice President of Student Affairs and Services (VPSAS) • The respondent and complainant have the exact same appeal options, and the VPSAS has broad authority to resolve an appeal. The decision of the VPSAS is final. SUSPENSION/DISMISSAL IMPLEMENTATION • Only the VPSAS may implement a suspension or a dismissal. Therefore, the VPSAS will review all suspension and dismissal recommendations, whether or not they are appealed.

22. MSU Due Process Part II Formal Disciplinary Hearings

23. Disciplinary Hearings The purpose of a hearing is first to provide the complainant and respondent with an opportunity to have their dispute/conflict heard by a neutral 3rd party. Hearings come in two forms. Administrative– adjudicator is a single staff member (or a pair of staff members). Board – adjudicator is a panel of students, or a panel of students and faculty.

24. Disciplinary Hearings (cont.) The procedures, rules, and rights of both the respondent and the complainant are EXACTLY the same in administrative and board hearings. The respondent’s right to choose a board hearing reflects a core democratic value. To be heard by one’s peers, rather than administrator, serves as a check and balance against arbitrary and capricious uses of power.

25. Board Hearing Participants • Board members • Complainant (accuser) & Respondent (accused) • Witnesses* • Advisor** for Complainant and/or Respondent • Advisor (ex-officio) for the Board. *Witness must be MSU faculty, staff or student, unless they have direct knowledge of the incident in question. ** Must be MSU faculty, staff or student. On rare occasions, attorneys may serve as an additional advisor, but may not play an active role in the hearing.

26. The Board Advisor’s Role Hearing Board Advisors are designees of the V.P. of Student Affairs and Services The role of the advisor is to: • ensure that members receive proper training • ensure that all applicable laws, policies and procedures are followed • complete necessary administrative tasks • provide guidance as needed or requested

27. Hearing Procedures SCRIPTED– Significant portions of ALL hearings are scripted, in order to ensure a) compliance with due process obligations and b) manage the roles of hearing participants. The acting chair for each hearing reads the scripted portion, and facilitates other aspects of the hearing that are unscripted. Below is a general outline of the major portions of each hearing. STEPS • Hearing convened • Procedures reviewed • Witness excused • Complainant presentation (witnesses included individually) • Respondent Presentation (witnesses included individually) • Q&A (only board, complainant, & respondent may ask questions) • Complainant closing • Respondent closing • Hearing adjourned • Board deliberates matter of responsibility and then sanction (if responsible)

28. Standard of Evidence The standard used in determining responsibility in disciplinary matters is called a preponderance of the evidence. A preponderance standard means that which is most likely, or that which has the greatest weight orprobability (e.g., 50%+). In other words, whose version of events seems to be the most credible and most likely to have occurred.

29. Burden of Proof The burden of meeting the preponderance standard is on the complainant. Therefore, respondent is presumed to be not responsible prior to the hearing (i.e., hear the case BEFORE you decide it). The complainant’s information must be MORE credible than the respondent’s. Merely being equally convincing is insufficient. The respondent has no obligation to present any information. In fact, the respondent is not actually required to attend the hearing. Board members an administrators MAY NOT apply a different or arbitrary personal standard. Doing so may be tempting in circumstances where the possible sanctions may be harsh. However, applying a different standard is both unfair to all the parties involved and is an unethical practice.

30. Types of Information Information presented at hearings typically comes in three forms: Documentary – supporting documents Testimonial– oral information based on personal knowledge Physical – photographs are the most common example NOTE: Hearsay information is generally not considered.

31. Relevance of Information Relevant informationtypically addresses critical aspects of the situation such as: • Harm done to persons or property • Expressions or demonstration of intent • Identification of those responsible • Access to, or possession of, materials used in committing the violations

32. Weighing Information Hearing bodies will be presented with information from a variety of sources. In the vast majority of cases, not all the information will point to the same conclusion. How, then, should you go about weighing the information that has been presented?

33. Credibility Credibility is often a deciding factor in cases where little to no physical evidence is provided. In evaluating various statements, consider what each person has to gain or lose. What might their motivation be for participating in the hearing? How does the testimony of an uninvolved bystander or someone acting in performance of assigned duties compare to that of a roommate or best friend? Another aspect of credibility is determining veracity of statements made. For example, if it can be demonstrated that a statement offered was clearly false or outside the realm of general possibilities, then other statements made by that same person may lose credibility. This is particularly true when it appears that someone is knowingly providing false information, or attempting to mislead the hearing body.

34. Probability Probability means the likelihood that something occurred, and is often at the heart of deliberations. As a general rule, it is good to rule out extreme possibilities on either end. Instead, look for the most reasonable explanation of events. Remember, this is not beyond reasonable doubt where you have to be absolutely certain.

35. Corroboration Corroborating information is often of the highest value in reaching a decision. However, this can be tricky. The testimony of a single unbiased and disinterested witness is likely worth more than any number of biased testimonies; particularly if they sound exactly the same. Only in very rare circumstances where all witnesses involved are unbiased should the number of witnesses be a factor in determining a contested fact.

36. Character Issues & History Character issues and history typically have little value in determining whether or not someone violated a regulation. Character witnesses rarely offer information that establishes relevant facts about an event, and we all know that “good” people can do “bad” things (including ourselves). Remember, this process is not about deciding whether someone IS good or bad, but whether or not they violated a University policy. Likewise, history should be given little consideration because it may have nothing to do with the incident in question. Just because someone did something in the past does not mean that they repeated that same behavior. History however MAY become important if/when a sanction is determined.

37. MSU Due Process Part III Appeals

38. USAB Appeals The University Student Appeals Board (USAB) plays a critical role in ensuring that all those who participate in the student conduct process are treated fairly and equitably, and provides an important check and balance. In most cases, the USAB will not meet with the affected parties, but instead will review the written appeal, any responses to the appeal, and all case related material.

39. USAB Appeals (cont.) Appellate guidelines: • USAB will provide a degree of deference to the original decision body because it was in a superior position to see and hear from affected parties, assess credibility, review documentation, etc. • The question for USAB is NOT whether it would have made the same decision.

40. USAB Appeals (cont.) • Rather, USAB is limited to answering one or more of the following questions: • Did the information presented at the hearing support the original decision? • Did the information presented at the hearing support the original sanction(s)? • Were the applicable University provisions & procedures followed? • Was there a conflict of interest with a member of the decision making body? • USAB will issue a written decision, including the rationale for its decision. • USAB decisions must be linked to the grounds for an appeal.

41. MSU Due Process Part IV Educational Sanctions and Restorative Measures

42. Sanctioning Principle “Sanctions are for the (1) guidance or correction of behavior, and for the (2) protection of other community members … [and] … [s]hall be commensurate with the seriousness of the offense. Repeated violations typically justify increasingly severe penalties [AFR].”

43. Educational Sanction Categories University Status Warning Suspension (temporary) Probation Dismissal (permanent) Educational Engagement Participate in educational programming Change of campus housing Reflection exercises Assessment (e.g., alcohol, illegal substances) Restorative Measures Restitution Community service Others

44. Factors to Consider Community Needs Who was affected and how? What is needed to make things right? Respondent’s History Is this a one-time incident? Does the respondent have a history of similar behavior? Respondent’s Needs Is the respondent remorseful or display empathy? What guidance or correction is needed for long term success?

45. Most Common Alleged Violations • Alcohol use and abuse • Illegal drug use and distribution • Physical assaults • Theft • Property damage • Guest’s Behavior • Major community disruptions

46. Educational Sanctions When a student is determined to be responsible for violating a University regulation or policy, three categories of sanctions are to be considered: University Status (required) Educational Engagement (optional) Restorative Measures (optional)