Process for adjudicating student conduct cases draws criticism

June 7, 2017, 12:48 a.m.

James Smith* was a week from graduating when he learned he was suspected of violating Stanford’s Honor Code.

An instructor accused Smith, who attended Stanford within the last two years, of failing to properly attribute sources in a paper. Applying for jobs and graduate schools and fearing that a delayed diploma would damage his prospects, Smith hoped to resolve his charges quickly. He waived his right to have four students on the University panel that would adjudicate the allegations so that his case could move forward over the summer.

132 days after Smith was accused, a panel finally exonerated him of academic misconduct. But according to Smith, the ordeal continued. Even though he was not found at fault, Smith’s transcript still indicated that he had graduated in October, a potential red flag for universities and would-be employers. And when the instructor who had accused Smith posted his grade, it was five grade increments lower than what he’d averaged during the spring.

“It was a clear attempt to retaliate for losing the case,” he wrote to The Daily.

Smith eventually got his original grade back, and the registrar would ultimately adjust his transcript to say he graduated in June. But Smith said he got those concessions with difficulty and without support from the Office of Community Standards (OCS), which oversees student conduct cases. He pressed the grading issue with his instructor’s academic department head, who he says initially sided with the teacher, trying to protect her. Changing both the grade and the diploma date took help from a private lawyer.

“I lost a lot of confidence in the administration,” Smith said over the phone. “It’s a shame as otherwise I had a great experience here. It’s leaving a lot of regret, in that aspect — it’s sad to have to think about your alma mater like that.”

Smith is not the only person with criticism for the Office of Community Standards’ process. Echoing allegations of mishandled cases that The Daily covered in 2013, some students and their advisors who have been involved in conduct cases say OCS’s system for resolving accusations can be unnecessarily burdensome and should do more to protect students’ rights. Meanwhile, judicial panelists largely approve of the process but say they lack the training to rule confidently in specialized cases.

The OCS process

According to Sean Bogle, associate director of OCS, his office sees an average of 120 student conduct cases per year.  About 100 of these are typically Honor Code cases dealing with academic integrity, while the remainder are alleged Fundamental Standard violations ranging from drunk driving to physical assault.

Because the Fundamental Standard pertains to many types of offenses, there is no standard sanction for violating it, and disciplinary actions run from a formal warning to expulsion. OCS’s website describes the standard sanction for a first Honor Code violation as a one-quarter suspension plus 40 hours of mandated community service. However, many factors can lessen these consequences, and by far the most common sanction is actually a form of probation — a so-called “suspended suspension” under which students do not face time off unless they commit a second offense later.

Stanford is not alone in preferring to give many students found responsible for conduct violations a second chance. Of 86 Honor Code cases at Harvard that found the student responsible last school year, none resulted in expulsion and only about 16 percent resulted in the student taking a leave.

At Stanford, barring complications like the lack of a standard sanction or repeat offenses, students who accept the charges against them are eligible for OCS’s Early Resolution Option (ERO), an expedited process for handling cases created in 2013. Most students — about 85 percent of those charged with Honor Code violations — opt for ERO, according to OCS director Bogle.

That means that only about 15 Honor Code cases each year proceed to a hearing, either because a student contests the allegations against them or because the student is already on probation for a previous violation. Bogle said that about five of the 15 annual hearings involve alleged repeat-offenders and that students are found responsible in about half of the contested cases.

When a student decides to fight accusations, an OCS staff member acting as Judicial Officer (JO) investigates evidence on both sides. The case goes before a six-person panel comprised of four students, one faculty member and one staff member.

In order for a student to be found responsible, five of those six members must decide the accused to be guilty “beyond a reasonable doubt,” the highest standard of proof in judicial proceedings. Law student and panelist Brian Baran J.D. ’18, who previously studied at Rice University, said that it is “definitely harder to find someone responsible” under Stanford’s process than under Rice’s, which employs a lower “more likely than not” standard and a simple majority vote.

However, Baran hedged that significant differences in the schools’ approaches to conduct cases make comparison difficult. At Rice, investigations are handled primarily by a member of an all-student panel, Baran said, while at Stanford, involvement of full-time staff allows for more information-gathering to reach a higher burden of proof.

Some faculty take issue with that higher burden. At a Faculty Senate meeting in 2014, then-director of OCS Susan Fleischmann pondered lowering the bar for finding a student guilty, indicating that the Board of Judicial Affairs — a committee that oversees OCS policy — would discuss the issue in light of a number of faculty members’ frustration over findings of “no responsibility.”

Smith’s case

Despite the stringent requirement to find someone responsible in a hearing, critics of OCS like Smith maintain the office fails to adequately support and protect students.

Smith said his judicial proceedings were “pretty civil,” but he found OCS’s decision to charge and its investigation timeline confusing. He criticized the limited window that both the reporting and the responding party in a case have to submit evidence, saying OCS gave him two weeks from the time of his charge to submit witnesses but then didn’t respond for over a month — giving him “time obligations on [his] end and not on theirs.”

“They made no effort to [resolve my case] in a timely manner,” he added. “In industry, complaints are handled in a 30-day timeline, and a 130-day timeframe is just so long and disruptive to life.”

According to Smith, when he reached out to multiple higher-up administrators trying to get help in moving his case forward quickly for his post-grad plans, he was either “rebuffed or totally ignored.”

In contrast, Bogle said students who opt for ERO typically have their case resolved in just one to two weeks. The average duration of a hearing case is longer at four to six weeks, he said. However, Bogle added that investigating thoroughly takes time and acknowledged scheduling barriers, especially toward the end of the school year. Cases that straddle the summer may face particular delays if a student wishes to be on campus for their hearing or if OCS struggles to gather student panelists.

When The Daily mentioned to Bogle that Smith waived his right to student panelists and did not wish to delay his hearing until fall, Bogle still cited the difficulty of scheduling, saying faculty members may not be able to congregate at the times a student requests. Even during the school year, gathering a panel can be challenging: A student representing OCS said at a recent Senate meeting that the office currently has about half of the 50 student panelists it wants and has to reschedule hearings as a result.

For Smith, though, timing issues were not the only problem. The Student Judicial Charter of 1997 sets forth “fundamental rights” for all parties going through an OCS case; among the rights guaranteed accused students is “reasonable protection from retaliation.” By Smith’s telling, OCS and other departments didn’t readily deliver on that promise.

“It’s clear that [OCS and] multiple other University offices and officials do not have the student’s welfare in mind,” he said after describing his difficulties not only with his investigation but with his grade and diploma date.

OCS, for its part, says that dealing with instructors’ conduct is outside its purview.

“We view any sort of concerns around faculty as something that should be addressed at the local school level,” Bogle said, pointing out separate processes for looking into academic grievances. “Our process … just does not have jurisdiction over holding faculty members accountable.”

Bogle did not respond to a question about the University’s general policy on diploma dates for students found not responsible for misconduct, after saying he would need further context such as Smith’s name.

Overall, Smith told The Daily he wished for “a better support network” separate from the office investigating him. OCS assigns cases a Judicial Advisor (JA), tasked with helping parties understand procedures, in addition to the Judicial Officer (JO) investigating. If students want, they can also talk to a volunteer judicial counselor, typically a former panelist who gives advice on navigating the process and making a good impression.

Smith still felt like he needed help from outside counsel and got an attorney: “You don’t have any confidence in sharing a lot of information,” he said. OCS staff members rotate between the JA and JO roles, a practice that raised doubts for Smith about his advisor’s neutrality.

Emeritus Professor of Radiology Lewis Wexler, a faculty panelist for over a decade, also believes there is more room for student support, although he pointed out fundamental differences between OCS’s proceedings and a legal court.

“There is not real attempt, the way a prosecutor might, to try to uncover evidence,” he said, adding later, “We don’t have a good system yet for helping the student mount a good defense.”

Longstanding clash over rights

Asked his opinion on students’ use of lawyers to build that defense, however, Wexler was not so sure.

“Lawyers come in with this other mindset of what a court room is like,” he said. “I’m not saying we want to get into that.”

Lawyers have been among OCS’s most dogged critics, insistent about student rights even as some cheating-weary faculty push from the opposite perspective, arguing Stanford can take a sterner approach to potential misconduct.

In late spring of 2013, a group of attorneys and students came forward to The Daily with a 2011 case study detailing three students’ experience with OCS, which at the time was still called the Office of Judicial Affairs. The case study alleged that University staff repeatedly violated the Judicial Charter through actions ranging from discouraging students from calling witnesses to charging a student without evidence.

Administrators strongly denied the study’s findings and said it was not representative, referencing an 18-month internal review of the Office of Judicial Affairs completed in 2012. In response, The Daily’s then-editor-in-chief weighed in to say he had “heard nothing of substance” refuting the case study. Those behind the report, coalescing under a group called the Student Justice Project, later released 24 student testimonials, claiming the case study was not an outlier.

Leadership of OCS changed hands multiple times over the next few years, starting in January of 2014: Most recently, former OCS director Fleischmann left halfway through this school year, in February, to join the law school as special assistant to the dean and chief of staff. The office is still searching for a new head.

With Fleischmann’s departure, all staff working at OCS in 2014 have now moved on; five of OCS’s current six staff all joined during the same time period in the summer of 2015. The Daily could not reach multiple former employees for comment, but a staffer who left in 2015 suggested the departures were coincidental.

Fleischmann declined to answer questions and referred The Daily to Dean of Student Affairs Chris Griffith, who did not address the reason behind Fleischmann’s move.

Reid Spitz ’14, president of the Student Justice Project, speculated that staffing played a role in the mishandling of cases his group claimed, arguing that “people in [OCS] were already stretched pretty thin and part of the reason [for] the roughshod lack of due process was, in my view, that they were processing a lot of cases.”

Spitz said he was among the students who interviewed Fleischmann for the OCS director position and did not recommend her, writing at the time that he did not believe she would sufficiently uphold students’ rights. Bob Ottilie ’77, a San Diego-based lawyer involved in the Student Justice Project who put The Daily in touch with Smith and another client, was similarly critical of Fleischmann. He remains unsatisfied with OCS.

“What Susan Fleischmann failed to do is come in and fix the system,” Ottilie said. “I think when [Fleischmann] came in, [administrators] were to some extent trying to be responsive to the criticisms we had raised.”

While director of OCS, Fleischmann took a mixed view of some aspects of office’s process that, in Ottilie’s view, bolster students’ defense. Three years ago in the Faculty Senate, instructors questioned whether students should continue to be allowed lawyers as advisors after Fleischmann noted that they can draw out proceedings and “make sometimes burdensome requests for the production of information and evidence from the reporting parties.”

“For the cases that I’ve seen, lawyers would be very inappropriate, because we’re not talking about crime,” said the anonymous faculty panelist The Daily spoke to. “Violating the honor code, plagiarizing, cheating on exams — those are not criminal or civil matters.”

Student panelist Baran, on the other hand, said he would not mind if a student sought legal help, and Ottilie and his clients maintain its value in navigating a complex system. But Ottilie says he tells his clients to keep the fact that they are talking with a lawyer secret, believing it will hurt their chances if OCS finds out. (Most of the panelists The Daily spoke to said they were unaware of students using attorneys.)

“If you give a statement right away, then you show up later with an attorney with corroborating information, they treat you… like you’re manufacturing evidence,” Ottilie said.

“What I’ve noticed under [Fleischmann] is that the staff will start trying to intimidate the accused by suggesting that they’re getting help from an attorney,” he added. “If the student’s doing too good of work, they’ll say, well, this isn’t your own work.”

This was the alleged experience of Ottilie’s other client, who navigated the OCS process last spring. Writing to The Daily, the student said she quoted frequently from the Judicial Charter in her back-and-forth with staff and that OCS took an intimidating response when she became assertive — for example, by pressing for the right to submit character references and bring materials for the panel into her hearing when OCS initially said she couldn’t.

In the end, she said, OCS conceded her ability to do both. But according to the student, when she became more vigorous in defending herself, OCS suggested that someone else was writing her materials for her and that, if so, she could be charged with an additional violation.

Bogle could not speak to specific cases, citing students’ privacy, but a bylaw to the Judicial Charter states that students’ advisors cannot “speak on behalf of or otherwise represent” the accused. Griffith clarified over email that the rule applies to both writing and speech.

Ottilie and his client from last spring also criticized OCS as favoring instructors — for instance, by interviewing the accused but generally not interviewing reporting parties such as TAs or professors, relying instead on submitted documents. The Judicial Charter stipulates that Judicial Officers should meet with people raising a complaint as an early step in the process.

“[OCS does] not implement their own charter,” Ottilie said. “They ignore their charter … and they disrespect their students by doing so.”

Ottilie’s client’s biggest queasiness with her case came when she realized that OCS and her confidential judicial counselor had apparently been discussing her communications to staff: The counselor told her to soften her tone in order to avoid appearing guilty, according to the student.

Bogle said he has no knowledge of OCS staff working “in cahoots” with counselors and, responding to claims of bias toward teachers, he defended the office’s neutrality.

“We’re not in the business of prosecuting a student,” he emphasized. “We’re in the business of investigating a concern.”

Ottilie’s specific qualms with the OCS process are many, but broadly, the Student Justice Project diverges with Stanford on how legalistic internal University processes on student conduct should be. Where administrators describe a process meant to help students learn from their violations, Ottilie sees a prejudicial focus on correcting behavior. He said administrators called the OCS process a “disciplinary” and “educational” system in conversations with him.

“The only time you’re disciplining somebody, or the only time you’re ‘educating,’ as Chris Griffith would say, is once you’ve proven guilt,” he said.

“Our student conduct process is both a judicial process and a personal learning process — some of the most powerful learning that occurs for all of us is the result of the mistakes that we make,” Griffith wrote in response over email. “I don’t think that the two perspectives of the process are mutually exclusive.”

Faculty panelists echoed the educational emphasis.

“I personally am not interested so much in the sanctions as I am in trying to educate the student about where they went wrong,” Wexler said.

Panel challenges

While accused students express frustrations with OCS, the community members who adjudicate that small group of students who do contest their charges say the OCS system, while overall fair, expects too much from panelists, despite the training they receive before they start adjudicating.

Faced with that uncertainty, two panelists said, those adjudicating tend to err toward leniency, especially if a student appears vulnerable.

“I … vividly remember [a case] where we found somebody not responsible where it was clear to me that they were,” said the anonymous professor, who has served on nine judicial panels.

All three faculty panelists The Daily spoke to said confident verdicts can be particularly difficult to reach when allegations originate from computer science classes, which account for the vast majority of OCS’s Honor Code charges.

CS instructors say that Measure of Software Similarity (MOSS), a tool developed by a Stanford professor to automatically assess whether code may contain plagiarism, makes cheating easier to catch in CS than in other many other disciplines. Useful as MOSS may be for flagging violations in classes with hundreds of students, judicial panelists — who come from all departments of the University — struggle with how much to trust the automated reports.

Panelists do get guidance putting MOSS evidence into layperson’s terms, but that guidance typically comes from the instructor bringing a complaint of cheating. The anonymous professor noted the potential pitfalls of having the reporting party act as interpretive intermediary.

“Psychologically, as a panelist, you bring a skepticism to what both sides are saying, because you assume they’re using this evidence to make their argument,” she said. “I would say that often panelists are not confident about being able to evaluate the evidence that’s presented [in CS cases]. We don’t have a panel of people who know how to code. There’s a certain reluctance to interpret evidence.”

The professor would be more comfortable if there were other code-savvy people on hand to assess; perhaps, she said, the CS department could even have its own internal panel to evaluate whether a violation actually occurred. Wexler said he’s suggested such a CS-specific system multiple times through end-of-year feedback to the Board of Judicial Affairs (BJA). However, Sam Kurland ’17, student chair of the BJA, said that the Board wants to keep panels “broadly representative of the community” rather than specialized in particular departments.

The anonymous panelist said she’s observed CS instructors appear particularly invested in finding accused students responsible. The CS department has drawn scrutiny for Honor Code cases in recent years: A 2015 spate of over 100 suspected violations in gateway course CS 106A prompted a letter to all faculty from former Provost John Etchemendy Ph.D. ’82.

“I could tell that the computer science faculty members who were bringing the cases to the panels I sat on … were really … wanting the panelists to hold the students accountable, because they obviously wanted the University to be sending a message, saying this is not just a slap-on-the-wrist situation,” the panelist recalled.

Another common theme among faculty panelists’ concerns was the inordinate weight that sanctions can carry for students from outside the U.S., for whom suspensions can mean losing visas and getting expelled from the country. Frances and Charles Field Professor in History Karen Wigen said she’s personally struggled with this weight during her one-and-a-half years as a panelist.

“I think it’s putting too much on a handful of minimally trained faculty and students to ask us to adjudicate a case where, by simply applying the normative standard and sanction … we’re kicking somebody out of the United States,” Wigen said, adding, “That is a heavy thing to go home with.”

Wigen said she would like some sort of legal analysis of whether students would indeed be expelled from the country if suspended, an outcome they fear and plead to panels.

Responding to panelists’ concerns of uncertainty during deliberations, Bogle affirmed that panels may decide to lessen students’ sanctions in light of circumstances such as being on a visa or being about to graduate. While Bogle hopes to eventually implement “refresher” training for panelists who have been serving for many years, he argued that panelists’ discomfort is unavoidable — a sign they care.

“With more refreshing or training, that would allow the panel to feel perhaps more comfortable when they’re reaching their decision,” Bogle said. “But the truth is, it may feel uncomfortable and it probably should feel uncomfortable.”

*James Smith is a pseudonym to protect the student’s identity. At Smith’s request, The Daily is also not publishing his exact graduation year. The Daily has allowed various sources in this article to remain anonymous due to the sensitive nature of their experiences.


Contact Hannah Knowles at hknowles ‘at’

Fangzhou Liu contributed reporting to this article.

Hannah Knowles is senior staff writer from San Jose who served as Volume 253 Editor-in-Chief. Prior to that, she managed The Daily's news section.

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