Over the last few years, as I have traveled the country
helping colleges and universities improve their ability to investigate and
adjudicate hazing, I have noticed a disturbing phenomenon; most college
campuses are incredibly ill-prepared to address misconduct involving student
organizations and varsity athletic teams.
Take a look at the NASPA Fraternity/Sorority Knowledge
Community page, or the ATIXA listserv, or the ASCA Facebook group and you’ll
notice the same glaring trend – LOTS of questions about how to handle
organizational investigations and adjudication. As I work with campuses on
these issues, I see a lot of common mistakes, many of which I now address in my
training. In this post, I want to address some of those mistakes and offer “Doctor
Gentry’s Five Rules for Managing Organizational Conduct.”
Rule #1 – Have an Organizational Conduct Policy that Is
Separate from Your General Student Code of Conduct
This is the first rule, because it is the most common
mistake that campuses make. Many campuses treat student organizations no differently
than they treat individual students. In doing so, they only have one policy (a
student code of conduct) laying out prohibited behaviors, procedures, and
student rights. As many campuses eventually discover, this “one size fits all”
approach rarely works cleanly with student organizations.
Campuses would be wise to adopt a separate set of policies
related to managing organizational conduct. These should include a specific set
of processes related to organizational investigation/adjudication procedures, a
clarification of roles/responsibilities in the process (more on that later), and
options for formal or informal adjudication (also more later). In addition,
some prohibited behaviors also warrant their own separate policies. Almost all
campuses now have Title IX/Sexual Misconduct Policies that lay out prohibited
behaviors and procedure related to sexual harassment and gender discrimination
on campus. But what about a hazing policy? Most campuses only mention hazing in
the list of prohibited behaviors and never get into the details of how hazing
will be investigated/adjudicated. Campuses would be wise to adopt a stand-alone
hazing policy laying out these procedures. At NCHERM we have adopted a model hazing policy that we provide as a resource to the campuses with whom we work.
What should these separate policies include? Generally
speaking, as an institution, you need to “give yourself permission” to use
specific investigative tactics. For example, if you are conducting an
investigation into hazing and you want to lock all of the pledges in a room and
keep them there, restricting their communication until all have been
interviewed, can you do that? Does your policy allow for that? Or if you want
to require students to undergo a medical examination to examine them for signs
of hazing (bruising, burns, etc.), does your policy allow you to do that? My
guess is than 95 percent of current student codes of conduct do not address
these issues, which could leave campuses in a legal quagmire if they attempt to
implement these practices during an investigation. Campuses would be wise to write
these polices in a manner that gives them wide latitude in conducting
organizational investigations.
This is why a separate organizational policy is important –
there are some basic due process rights that are consistent (because they have
come largely from the courts since Dixon vs. Alabama) across institutions when
it comes to individual students and the conduct process. But the courts have
been largely silent on issues of organizational rights in campus disciplinary
proceedings. Generally speaking, a campus can create any system it wants to
adjudicate these cases, so long as the process is not arbitrary or capricious.
When campuses use individual rights to frame organizational due process rights,
they are only making the organizational investigation/adjudication process more
difficult than it needs to be. Campuses can do, in essence, anything they want with
student organizations, so long as they are following their own policies. So a
good organizational process begins with having good organizational processes
that are spelled out in a separate organizational policy.
Rule #2 – In Your Policies, Clearly Delineate Roles and Responsibilities
When an organization on your campus is accused or suspected
of wrongdoing, who investigates? Who adjudicates? Who hears appeals? Do these
responsibilities lie with a single individual? A single office? Or are these responsibilities
shared across campus based on the nature of the violation or the accused organization?
Can the student conduct office “sanction” a varsity athletics team, or are
those responsibilities vested solely within the athletics department? Who has
the authority to issue interim sanctions or cease and desist orders, and can
those be appealed? If so, to whom?
These are questions that often come up when I’m training
campuses on organizational conduct. And they are all good questions. I could
give you a list of “best practices” to answer those questions, but I’m not going
to. Besides, what makes a practice “best” and who makes that decision? The
short answer is this – every campus needs to address these and other important
questions in the manner that makes the most sense on that campus.
As you come up with those answers, here are some guiding
philosophies that I would suggest you apply:
- The key to any investigation is that it is fair, impartial
and unbiased. Thus, those closest to the team/organization should not be the
ones investigating. The campus fraternity/sorority advisor should not be
investigating alleged misconduct of campus fraternities for the same reason
that the soccer coach should not be investigating alleged misconduct of the
soccer team. Those working with these groups on a day-to-day basis are
incapable of impartiality (I’ve written more about this topic here).
- Investigations involving varsity athletics teams should involve
investigators from both inside and outside the athletics department. Someone
inside the department is critical in these investigations, as they will
understand team culture and traditions better than others. But it is also
important that these investigations not be seen as insular. Imagine if an
allegation is received, and the athletics department conducts a thorough
investigation of a team and is unable to substantiate anything. Then, the
following year, a student on that same team is injured in a hazing incident. Regardless
of how thoroughly the prior investigation was conducted, the appearance, from
both a legal and PR perspective, will be that the athletics department knew
there was a problem and did nothing about it, and only used inside people to
conduct the investigation. Having an athletics representative as part of the
investigative team also makes the sanctioning process much easier.
- Only senior staff should be able to issue interim sanctions/cease and desist notices for organizations, and these should be used sparingly (more on that later). In assigning these roles, it is important to build a firewall between the adjudication process and the appeals process. For example, if the VPSA is the appeals officer, he or she should not be the one to offer interim sanctions. That responsibility should be designated to a Dean of Students or equivalent position. Fraternity/sorority advisors or other campus organization advisors should not be responsible for issuing cease and desist notices, as this can jeopardize their ability to work with accused groups in the future.
Rule #3 – Self-Governance Should Be the Goal of
Organizational Conduct Processes
The entire organizational process should be centered around
one goal – to promote and encourage organizations to self-police and
self-govern. This theme should be woven into the investigation process, the adjudication
process and, most importantly, the sanctioning process. Here are a few ideas
that encourage self-governance:
- Self-Reporting Policies – our model hazing policy at NCHERM
has a clause for self-reporting. The idea behind this clause is that you give
organizations an incentive for reporting individual misconduct violations
(particularly helpful in hazing, Title IX, and other serious crimes – less helpful
with alcohol and other minor violations). The clause basically says this – if an
individual in your organization violates a policy, and you address it and
report it, we will work with you to address JUST that individual and will not
sanction the entire organization. To borrow the “carrot and stick” analogy,
self-reporting provides a great carrot aimed at getting organizational leaders
to draw clear lines of acceptable and unacceptable behavior in their
organizations.
- A Partnership Process – Out of all of the campuses I have
worked with, LSU probably does the best job of giving student organizations an
incentive to self-investigate, and on the back end does a great job working
with organizations on “outcomes” as opposed to “sanctions.” You can read more
about their process here.
- Students Play a Role – Auburn University has done an
excellent job integrating students in at every level of the organizational
adjudicative process. All investigations (with the exception of Title IX) are
conducted by a trained student/administrator team, and students are involved in
the adjudicative and appeals processes as well. By creating transparency and
involving students in the process, student organizations are much more likely
to buy in to self-regulation and have a more favorable attitude towards the
investigative/adjudicative process.
- Create Incentives for Self-Governance Through Outcomes –
When you develop educational sanctions (or as I like to call them, outcomes),
you should do so with the goal of creating opportunities for students to
self-govern in the future. Here are some examples of process outcomes designed
to promote self-governance:
- Working with the group to overhaul its internal conduct/standards
process and ensure that members and advisors receive regular training related
to member accountability
- Working with the group to develop clear and articulated
membership standards and behavioral policies
- Having social restrictions tied to demonstrations of self-governance (i.e. if a chapter hits certain benchmarks related to self-governance, some of its social activities can be restored) and providing incentives for future self-reporting/self-governing
Rule #4 - Campuses Should Invest in Training Investigators
Campuses need to invest more in having a team of trained
investigators for organizational conduct cases, particularly those involving
victims (hazing, sexual or physical violence, etc.). By allowing novice
investigators with no formal training investigate these cases, we do a
tremendous disservice to victims. Hazing cases, in particular, offer the
biggest challenge for new investigators. Think about this – in a Title IX case,
the hardest thing an investigator will ever have to do is make a credibility
determination. Based on evidence gathered from third parties, whose version of
events do I find more credible. This is difficult to do, but not impossible.
Hazing cases, on the other hand, involve a concerted effort, even by the
victims themselves, to provide misinformation to the investigators. A large
percentage of hazing cases end with administrators being unable to substantiate
the claims of the case. Investigators need to receive training on how to handle
these cases. In a separate blog post, I’ve offered some advice on how to
conduct these investigations in a manner more likely to result in a finding of
the truth. Campuses who fail to invest in training their investigators will
yield the inevitable fruits of that decision – dead end investigations and
continued misconduct.
Rule #5 – Cease and Desist Orders Are Last, Not First,
Option
I have worked with several campuses in the last few years
whose automatic default, any time they receive an allegation of potential
misconduct, is to place the organization on a cease and desist (the organizational
equivalent of interim suspension). I think cease and desist orders should be
used sparingly in order to have the most impact and to avoid creating
unnecessary animosity between the students and the administration. Issuing cease
and desist notices are appropriate when failing to do so could place students
in harm’s way. In any sort of serious hazing case, or in cases of serious physical
abuse or sexual misconduct that is clearly organizational in nature (like the
Kappa Delta Rho case at Penn State last year), a cease and desist is the
appropriate response. But many campuses have now taken the step of issuing a
cease and desist for almost all cases, regardless of severity. A campus
recently called me about a Title IX case they were investigating, in which an
alleged sexual assault may have risen out of a fraternity party. The case was
completely individual in nature, and nothing indicated that the chapter knew
about, condoned, or was in any position to stop the alleged assault. The
investigation had revealed that there were some other issues related to the
party (namely distribution of alcohol) that may eventually lead to charges
against the chapter, and the campus administrators asked if a cease and desist
was appropriate. I responded, as I always do to this question, with a question
of my own – “If this were just a standard run of the mill alcohol case, not
involving a Title IX investigation, would you offer a cease and desist?” The answer to that question being “no,” I
proceeded to my next question. “Then why would the fact that this information
came from a Title IX investigation and not some other type of report cause you
to order a cease and desist?”
If an organization’s continued operation poses a threat to
student safety, then a cease and desist is appropriate. Short of that, it is
not appropriate and should not be used. Just because a fraternity or sports
team is indirectly involved in a potential Title IX violation does not mean
that the organization poses a threat to other students. Would we temporarily kick all of
the students out of a residence hall if a sexual assault occurred after a floor
meeting? Would be suspend the entire chess club if a student was sexually
assaulted by a member of the team after a match? Did anyone propose suspending
the entire Oklahoma football team after Joe Mixon punched a woman in the face
at an off-campus restaurant? I ask these rhetorical questions to illustrate a
point – holding entire organizations responsible for individual acts of
misconduct is rarely, if ever, appropriate. When cease and desist orders are
used as a punitive measure, and not because of a genuine concern for student
safety, then they become problematic. They should be used sparingly, and only
for the purpose of promoting student safety.
Organizational misconduct can be difficult, but if you
follow these simple rules, these cases will be much easier to manage, you will
be more likely to impact the negative behavior you are trying to address, and you
will build trust instead of animosity as you navigate the organizational
conduct process.
