Table of Contents

Introduction

History and Mandate(1)

Statistics indicate that roughly 67%(3) of all cases involving extraordinary petitions are decided against the student, although this high number may in part be due to a screening process that removes cases where students are most likely innocent from the Ad Board docket. An additional 70 or so "special" disciplinary petitions are decided per year, but a breakdown of these decisions is unavailable. Despite the lack of specific data on the outcomes of "special" petitions, there is no reason to assume that the percentage of cases decided against the student is any lower than for "extraordinary" cases.

Thus statistics seem to indicate that most students who appear before the Ad Board in disciplinary procedures receive negative additions to their permanent record.

Penalties

1) Admonition: A "Formal Reprimand" placed on the students permanent record.

2) Probation: A "Serious Warning" that sets a certain time during which extra-curricular involvement may be limited and subsequent disciplinary infractions warrant serious consideration of a requirement to withdraw.

3) Requirement to Withdraw: A forced leave of usually one year, of which six months must be spent in "regular" employment. Students may petition the Ad Board to be readmitted to the College after a set length of time. Roughly 90%(4) meet re-admission requirements.

4) Dismissal: A severing of the connection between Harvard and a student by the FAS. A dismissed student may only return to Harvard by the full vote of the FAS.

5) Expulsion: A permanent dismissal.

Overview of the Official Ad Board Process

Generally, the Ad Board views itself as "primarily an educational body with an educational role," meaning that it hopes to give students a sense of their own "obligation[s]" to the community and educate them as to the nature of responsible behavior.(5) This process of "moral education"(6) through a confrontation with concepts of right and wrong is intended to contribute to the "personal growth" of the student "by helping students both to make sensible, realistic choices and to meet obligations responsibly."(7)

This desire to use the judicial process as an educational tool arises from two assumptions. First, that all Harvard students deserve to be at Harvard, and that therefore disciplinary proceedings should help them to "make progress toward [their] degree"(8) and second, that the "Board's business is the welfare of individual students."(9) This in turn gives rise to the Ad Board's two standards for evaluating cases: equity and personal responsibility. The Board seeks to treat similar cases in similar fashions and to hold all students accountable for their actions. Thus the Board sees itself not as a "jury"(10) (which would imply a role confined to merely administering rules) but rather as a moral arbiter of the student body, "articulat[ing]" "general standards" for the Harvard community.(11) One should note at this point that the Ad Board's stated image of itself is necessarily process dependent; meaning that it hopes to utilize its procedures (confrontation between right and wrong, etc...) as a learning experience for the student, which is an end in itself. In contrast, if the Ad Board were merely a judicial body, only the final finding of the board would have any significance for the Board. This distinction highlights the need to focus on the actual effects of the Ad Board's procedures in order to discover if it is capable of achieving its stated ends, or if in fact "moral education" is even compatible with a University's judicial process.

CLUH believes that there are considerable problems with the Ad Board's conception of itself. These problems arise due the fundamental incompatibility between the administration of college rules and the stewardship of collegiate morals. These functions should probably not lie within the same body, and should definitely not be attempted at the same time. This is not to say that students can not learn from their experience in a judicial proceeding - they can - rather, we believe that too many factors inherent in the judicial process undermine the educational benefits that a well meaning body may attempt to impart, and that in fact attempts at "moral education" are counterproductive to both the educational and judicial processes.

Students in contact with the Ad Board face serious threats to their future, and have a significant stake in the outcome of their case - after all, the Ad Board's judicial functions always have the potential to mete out punishment. This stake tends to focus students more on their survival as a Harvard student than on the potential educational benefits of the disciplinary process. As a result, these students are unlikely to derive an educational benefit from their experiences, and may likely resent or misinterpret overtures to that end. While "moral education" may prove helpful for some students, those who dispute the Ad Board's conception of the moral status of the crimes for which they are accused are unlikely to benefit from a dialogue with their Senior Tutor. If anything, the Ad Board utterly contradicts its own principles when dealing with such individuals because it does not offer them a chance to try to convince the board, in a face-to-face dialogue, of the merits of their view. Under the Ad Board system, the confrontation between right and wrong is an educational experience only if the Ad Board thinks that it is right and the student knows that he is wrong. These factors may exist in many cases, but it is doubtful that they exist in all cases.

As presently constructed, the Ad Board is far more likely to alienate innocent students than it is to help them by sending College officials to "educate" them. It is not even a given that students who admit wrongdoing will derive any benefits from the judicial experience given the implementational flaws in the Ad Board's philosophy. Thus innocent students that slip through the screening process. are likely to be traumatized by the potential threat to their academic careers such that they are unlikely to benefit from any aspect of the judicial process, guilty students are too preoccupied to benefit from much of anything, and those in between have no real outlet to engage in a dialogue that could in fact be "educational" - the system simply can not work as intended.

In addition to the fact that "moral education" in the judicial setting does not work, there is considerable tension between the Ad Board's role as a fact finding, deliberative and sentencing body and its self-conceived role as a "moral educator." "Judicial" bodies, of which even former Ad Board Chairman John Fox admits that the Ad Board is an example,(12) have an obligation to assume innocence and institute various procedural safeguards to ensure that justice is done fairly - an individual's state of mind is secondary to his or her disposition. Educational bodies have opposite duties, they must strive to effect the individual's state of mind using the means, in this case coercive and intrusive means, at their disposal. While educational bodies can certainly be fair, the presumptions that they convey are incompatible with fundamental concepts of due process, as will be shown below.

This tension helps to explain why the administration has made contradictory statements about the Ad Board in the few publications that it has released. We have already noted the seemingly contradictory descriptions of the Board as "educational" and as "judicial," but there are others. For example, former Secretary of the FAS John Marquand has stated that the Ad Board is more like a "classroom" than a "courtroom," lacking "charges" and other legalisms.(13) Yet the SFJB charter published by the Faculty Council in 1987 refers to Ad Boarded students as the "accused" and facing "charges."(14) These references are not aberrations, but merely indicate that the Ad Board indeed resembles a court in form and function; it can not help but do so. The failure of the Ad Board to come to grips with this creates a gap between what is done and how it is done - the board makes judicial determinations in a non-judicial manner.

CLUH does not mean to imply that the Ad Board, by virtue of its judicial nature, must act like a court. We recognize that Harvard College is a distinctive academic environment with its own community standards that need to be enforced in a manner acceptable to the FAS, whose responsibility it is to shape the community. However, basic procedural and substantive rights transcend the borders of any community, and CLUH asks that the college respect these rights. But in order to do so, the Ad Board must recognize that it is judicial in character, and model its proceedings to reflect that fact. It is fine to desire to aid in the intellectual growth of students, but this must be secondary to insuring a fair process when the two goals come into conflict.

Dissemination of Information

"Informing oneself about the Board is not, I confess, a really easy thing to do"
-John Marquand, former Secretary of the FAS(15)

This dearth of available information impacts the judicial process in three important ways. First, ignorance of the Ad Board encourages a climate of myth and distrust about the Board that ultimately undermines that body's ability to fulfill either its educational or judicial roles. Second, the lack of any substantive information about what treatment and punishment to expect from the Board precludes students from effectively preparing their own defense. The Ad Board's goals of furthering education and fairness can not be met so long as it maintains a veil of secrecy around its activities. Finally, the lack of useful printed information forces students to turn to their ABST/SAs for advice, a course of action that is problematic for the reasons stated in the previous paragraph.

The 1981 Fox report highlighted the information problem, noting that the Ad Board had "never" succeeded in the "effective communication of its work to the College community."(16) The report went on to explain why this was a problem by quoting an 1893 report on the Board:

"No Penalty can educate the public unless known to the public; and the college penalties have long lacked educational effect through secrecy. A man is dismissed from the University; and the student public which either does not hear of his dismissal or understands that he has gone home for his health is none the wiser."

It has been ninety-nine years since these words were first written, and ten since they were re-written, and yet the flaws that they highlight persist today. If the Ad Board wishes to maintain the illusion that it is an educational body that articulates community standards, it must take steps to actually educate the community about the standards that it articulates.

The Ad Board is partially correct when its states that information is available to interested students: one can, with some digging, uncover considerable information about the process that students face before the Ad Board. Yet even significant research will not uncover critical information about what will happen to students, e.g. board precedents and biases of individual advocates. This lack of data has been attributed to the secrecy under which the Board operates. Dean Marquand has stated that it is "impossible" for the Board to "defend itself" from the attacks of critics because it "cannot disclose the personal affairs of students."(17) CLUH finds such a position to be as indefensible as it is convenient. Student privacy is not incompatible with a clear delineation of precedent and of the Board's expectations of students. Until such information is released, the Board's college-wide educational goals can never be met because they will never have the faith of the student body. Public accountability and understanding are the hallmarks of legitimacy; the Ad Board lacks both.

In addition to precluding the education of the community that the Ad Board strives for, the lack of information on precedents and other issues harms due process in a number of ways. First, although information is available for those who look for it, the College is obligated by any standard of "education" or due process to provide all the information a student needs to effectively defend himself before the Board. Currently, the only information provided directly to Ad Boarded students is a three page form that they must sign; they are not even given the sixteen page Fox Report. The three page form is woefully inadequate for educating students about the Board. It does not adequately explain the nature of the student/advocate relationship, nor does it give enough information on the differences between the Ad Board and the SFJB for students to make a rational choice between the two. This problem will be analyzed further in the advocacy and SFJB sections of this report. In addition, there have been allegations that this form is sometimes not given to students.(18) Thus students enter into the disciplinary process unaware of the (often inadequate) safeguards that exist for their benefit - due process suffers because students do not even know the process that is due them.

Second, student's ignorance of Ad Board precedent hinders their ability to adequately defend themselves because they are unaware of what is expected of them, what considerations of equity may effect them, and how the Ad Board views what they have done. Thus students are unable to learn from the past, nor are they able to engage in the intellectual endeavor of trying to distinguish their case from previous ones encountered by the Board. This is hardly educational for the students - they are forced to conform to standards of which they know nothing and have no control over. Only the ABST/SAs are familiar with Ad Board precedent, a fact that undermines whatever educational or deterrent value that precedent may have.

In its most basic formulation, due process requires that individuals appearing before judicial bodies be able to understand what they are being charged with, why the community thinks what they have done is bad, and how it might respond, as well as have the opportunity to argue against the above three suppositions. Harvard's process denies this right, fostering ignorance in the name of education.

Appeals

The Faculty Council created the SFJB to replace the under-utilized Committee on Rights and Responsibilities in 1987 and to "hear cases where the offense or incident is not clearly covered by university rules or precedent both on the degree of impermissability involved and on the appropriate range of penalties to be applied."(19) It was hoped that the SFJB would articulate community standards on developing issues so that the Ad Board could then adjudicate subsequent manifestations of those issues.

However, despite the faculty's hopes, the SFJB has heard only one case during its four year existence. CLUH supports the Faculty Council's original aims for the SFJB - we believe that many of the problems that the Ad Board faces in contexualizing rule violations into community standards can be solved by increased use of a body that is more reflective of the community. CLUH has identified a number of areas where the SFJB can be improved to perform what it was intended for.

• Education. At present, the Handbook for Students contains only two lines about the SFJB, offering only the advice to ask someone else about it. However, an informal survey of Senior Tutors indicates that they are often not very knowledgable about the SFJB.(20) The community ought to know considerably more about a board that supposedly reflects it.

  Similarly, while the form that students sign before commencing disciplinary proceedings devotes space to both the Ad Board and the SFJB, students are not told how the SFJB procedurally differs from the Ad Board or why they may wish to use it. Instead they are told to ask for information. It is therefore not surprising that only one of approximately 500 eligible students has utilized the SFJB; they have no information by which to gauge it, so using it is a shot in the dark in an already serious situation. What is even worse, any student asking to see the list of current procedures for the SFJB would receive misleading information (see below.)

• Another major problem stems from the deviation that the SFJB has taken from what was intended of it. The form that offers students the option of petitioning the SFJB implies that it is procedurally similar to Ad Board,(21) and the SFJB procedure sheet produced by its members states that "students should not have to choose between the [SFJB and the Ad Board] because of different procedures."(22) While the SFJB was not intended as a procedural alternative to the Ad Board, its creators explicitly mandated a set of procedures radically different from those of the Ad Board because of the "the nature of the cases" that the SFJB was intended to hear.(23) For example, confrontation of witnesses and evidence, personal appearances in most cases and non-faculty advisors are all allowed in the SFJB but not in the Ad Board. If students were aware of this, they might be more inclined to use the SFJB.

• Advising. Given that only one in roughly five hundred potential cases has gone to the SFJB, CLUH believes that ABST/SAs could not possibly be adequately explaining the SFJB to students. If they had been, we presume that more than one case would have been sent to the SFJB over the past four years. While ABST/SAs may legitimately feel that the use of the SFJB is not in the best interest of students, the Faculty Council was correct in determining that the SFJB could be of considerable value to certain students in certain situations. The Ad Board should welcome the SFJB as a tool to help it define community standards rather then discouraging its use. In the final analysis, students should be trusted to determine what is in their own best interests.

Advocacy and Ad Board Procedures

The fundamental problem is that advocates have an agenda that is not necessarily compatible with a students interest in receiving a fair hearing from the administration and receiving an opportunity to justify themselves. Evidence of this tension can be seen in the Ad Board's description of itself.

The language that the administration uses to describe itself is disturbing. In order to present the Board with a "complete and balanced account" of a given incident and to reflect the students "point of view" to the Board,(25) an advocate is expected to meet with the student to discuss the matter and work out a written statement to read on the students behalf. Dean Fox calls this a "hearing,"(26) Dean Marquand calls it an "educational enterprise"(27) however CLUH finds an analogy to an inquisition more appropriate. We derive this analogy from the university's sacrifice of the presumption of moral innocence to the goal of education.

While the Ad Board claims, and CLUH has no reason to doubt, that all cases in which the facts are not clear are decided in favor of the accused student, the word fact seems to have taken on a new and disturbing meaning. Dean Marquand has stated that an advocate should help a student "shed light" on an "incident"(28) and Dean Fox has claimed that this process usually results in agreement between the advocate and student on the facts and moral issues surrounding a students actions.(29) CLUH finds it impossible to believe that of the hundreds of students who have had their permanent record marred by the Ad Board, a majority agreed with the Board as to the "fact" of the moral significance of their offenses. The notion that students "come to terms"(30) with their behavior is an overly paternalistic concept reflective of the coercive power of the Ad Board. Of the students that CLUH has talked to who have been Ad Boarded, a majority have felt intimidated by their advocate (even if the advocate does not intend to intimidate the student, it can happen) into accepting the Ad Board's view of the seriousness of their conduct. The Board's continued insistence that students must answer all questions put to them also fosters an atmosphere where intimidation can occur because a student can be forced to incriminate themselves during discussions with their advocate. The effect of this intimidation is exacerbated by the Ad Board's occasional inability to reflect community opinion, as student conduct is evaluated through a lens that students can neither understand nor focus.

Thus the Ad Board's intertwined foci on education and discipline places the Senior Tutor in the unfortunate role of simultaneously having to advance both the student's and the Board's interests. In the end, neither party receives adequate representation.

Furthermore, even those students who do choose to actively dispute the Ad Board's conception of the moral significance of what they have done face daunting obstacles. First, for those not under consideration for probation, the Ad Board hears their case through the distorting prism of their advocate. Rather than arguing their case before a twenty-five person board, students must present their case through a surrogate, who whether by intent, bias, or simple human fallibility can not ordinarily present a student's point of view as well as the students themselves. Thus students lose out on the ability to be "educated" because they can not present their case to the board and therefore lose the limited opportunity to express themselves and engage in a dialogue with the Board.

Even those students who are able to appear before the Board do not have very many opportunities to influence it. They may ask questions, but may not cross-examine witnesses. These circumstances make discovery and discourse next to impossible.

In summary, the Ad Board decides the fate of students based on the recommendations of advocates who, in paractice, students most likely did not choose, do not control, and who do not necessarily have to recommend action that the student would agree with. The Board, which lacks any significant student input, then evaluates the charges and assigns punishment based on their perception of community standards; perceptions that the student has neither knowledge of nor influence on. The student's sole influence on the process is either a written statement read by someone else and written after a dialog with an inherently coercive institutional actor or a personal appearance devoid of significant procedural benefits, and probably discouraged by their advocate anyway. This is hardly educational, definitely not fair, and certainly a violation of any standard of due process.

Conclusion

CLUH supports the College's policy stating that life at Harvard should be based on the exercise of rights and the fulfillment of responsibilities. CLUH has exercised its right to "press for actions on matters of concern." We urge the Faculty to fulfill its responsibility for "openness to constructive change."(31)

Recommendations

A Case Study: Chad Katter(32)

Chad was accused of, and admitted to, using a modem and an illegally obtained computer account to send E-mail messages to friends using other peoples names‹a high-tech version of sending a letter with a false signature and return address. He was formally admonished by the Ad Board. Throughout the process Chad maintained that the actions for which he was accused of did not warrant admonishment by the Board. While CLUH takes no position on the appropriateness of the level of punishment given to Chad, serious procedural errors during his case indicate both isolated and inherent flaws in the way that the Ad Board operates.

First, Chad was never given the form outlining the Ad Board and the SFJB that all students are supposed to sign before talking with their Senior Advisor. He thus never received any knowledge about his ability to choose another advocate, which is important given that he did not trust his Senior Advisor. He was also not aware of the existence of the SFJB, which would have been the perfect forum for adjudicating his case, since it involved abuse of technology on which community standards have not yet been articulated. He thus was deprived of knowledge critical to his defense and on these grounds alone should have his admonishment reconsidered.

Second, upon hearing that he was being Ad Boarded, Chad was told that due to the almost complete ignorance of computer networking within the Ad Board, a special sub-committee was being set up to study the issue. Chad heard nothing more on the case for six weeks, during which time he was justifiably quite nervous. While CLUH applauds the Ad Board's efforts to gain more knowledge on the issue, we fail to see why this took six weeks, why it was not suggested that the SFJB handle the issue, and how the Ad Board could possibly feel that its goal of helping a student "make progress toward his degree" was achieved when the student in question spent the first six weeks of his second semester at Harvard in fear of not being around to ever get that degree. Again, CLUH does not see how Chad was treated in either a judicial or educational manner.

Third, Chad never was able trust his Senior Advisor to adequately represent him. He does not feel that her defense of him in front of the Ad Board was spirited, believing her to be "ambivalent" about his case. Whether his assessment is correct is beside the point; what is clear is that a system in which students do not trust their representatives has emerged in the Ad Board, and because of this it can not possibly be achieving its educational or judicial goals.

Fourth, Chad was denied the ability to appear personally before the Ad Board, having been advised by his advocate (whom he already did not trust) that it was not in his interest to do so. Thus Chad never knew about the SFJB, was not given the opportunity to pick an alternative advocate, and was not even allowed to represent himself. Such officially sanctioned ignorance and incapacitation serves no educational purpose and represents a departure from basic standards of due process.

Some of the issues raised by this case are not inherent flaws of the Ad Board; CLUH is reasonably confident that most students receive the required forms and have some faith in their advocates. However, the injustice suffered by Chad would not have been possible if the Harvard community had more access to information on the Ad Board and the SFJB. Furthermore, if Ad Board procedures were more receptive to alternative advocates and personal appearances, Chad would not be as alienated from the administration as he is now.

It should be noted that Chad has allowed CLUH to make his case public despite his own fears that reprisals of some form will be made. CLUH hopes that such fears are unfounded in a modern educational institution.

This case adds impetus to our call for reform, and additionally compels us to demand that the Ad Board investigate the violations in its established procedures that Chad alleges occurred. If his claims are correct, his admonition should be reconsidered. If no mechanisms exists for such a review procedure, they must be created.

Notes