As a law school faculty member who occasionally serves as a faculty advisor to students before the Undergraduate Conduct Board, I share the concerns expressed by Mike Lefevre, Duke Student Government President. Students before the UCB face career-altering charges that, if prosecuted in criminal court, would be felonies. The current “clear and convincing” evidence standard, while probably too low given the nature and consequences of some UCB charges, ought not be lowered to the greater weight of the evidence used in civil courts. If the goal is the accurate adjudication of rights and begins with a presumption of innocence, surely a higher standard than greater weight is required. If Duke should have learned anything from the lacrosse fiasco, it is the importance of the presumption of innocence.
Lefevre is also correct about the UCB’s confusion in role between adjudication and education. Each time I appear with a student before the UCB, I learn that some right that previously existed has been abolished by administrative fiat, further weakening the accuracy of adjudications. For more than 25 years, students who wished to appeal were entitled to a copy of the tape made of the proceedings, so that they could have it transcribed (at their own expense) and be able to quote from it for their appeal. Literally, today, I learned that students no longer have that right. They may only listen to the tape in an administrator’s office. While I could understand that a rule limiting what a student could do with a tape and requiring its return could be necessary, the current rule throws an unnecessary hurdle before a student exercising his or her right to appeal an erroneous determination.
In a world where what appears on a transcript stays with a student forever, for serious charges adjudication must be kept separate from education. The time for education comes before the alleged offense or after final adjudication. In between, we must safeguard the rights of the accused.
Donald H. Beskind
Professor of the Practice of Law
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