‘The jury and the prosecutors’

The central question facing the Committee on Discipline one night last year — a question that would contribute to the eventual verdict in a student plagiarism case — focused on a time stamp.

If the time stamp on the student’s computer science assignment was altered, it would indicate the student had plagiarized and then presented fabricated evidence to the Committee before the hearing.

The issue of the time stamp came up toward the tail end of the four-and-a-half-hour long hearing, late at night on March 13, 2013. In a discussion lasting around one minute, the Committee decided the time stamp could, in theory, have been fabricated. No evidence presented during the hearing suggested that the time stamp had been fabricated. Nevertheless, the student was found responsible for plagiarism and suspended for a year with a note of “censure” on her punishment for having presented fabricated evidence.

Debates over the fairness of the Committee on Discipline’s procedures are decades old. But, for the first time, The Daily Princetonian has obtained an audio recording of a hearing, provided by the student from the March 2013 hearing on the condition of anonymity.

A review of the hearing provides rare insight into the largely opaque process and calls into question whether the Committee always meets the high standards of evidence that it holds itself to in order to find a student responsible for a violation. Moments in the tape bolster the arguments of detractors who suggest that some of the questions the Committee asks during hearings are designed to prompt accused students to make self-incriminatory statements.

During the reporting process, the ‘Prince’ sought to use the hearing to shed light on the disciplinary process in general — a longstanding campus-wide debate that previously lacked any documentary evidence.

University officials explained that the 'Prince' did not have access to the internal deliberations of the Committee, nor the evidence itself, neither of which are disclosed to the public, which is similar to the American judicial system. Chair of the Committee and Dean of Undergraduate Students Kathleen Deignan explained that the observations and discussions presented at these deliberations, without accused students present, can put the Committee's decisions in full context. Deignan said she and other Committee members could not discuss the details of this case, or any specific case, due to policies protecting students’ privacy.

Nonetheless, Deignan emphasized that the accused student is always presented with all evidence and has the opportunity to respond.

All Committee hearings are recorded for the purposes of an appeal.

[audio mp3="http://dailyprincetonian.com/wp-content/uploads/2014/03/discipline-hearing-31.mp3"][/audio]

Too harsh or too lenient??

The student’s hearing was one of an estimated 25 to 40 cases heard each academic year by the Committee, which adjudicates most violations of University policy, from cheating on homework assignments to sexual assault. The Committee has previously been criticized both by those who claim it is too harsh on accused students and those — namely advocates for rape victims — who claim it is too lenient. In addition, some argue that the University’s limited range of penalties result in punishments that do not fit the crime.

Deignan, who was secretary of the Committee for 17 years after her arrival at the University in 1984 and has chaired the Committee since 2001, argues that there are good reasons behind many of the most commonly criticized aspects of the Committee’s work. She said the Committee sets a higher standard of evidence than most civil court cases and peer institutions’ disciplinary bodies in order to minimize the risk of a false conviction, and argued that a limited range of punishments is necessary to uphold the academic and intellectual values of the Princeton community.

Courts adjudicate most civil cases based on a "preponderance of the evidence" standard, meaning that the defendant can be found guilty if more than half of the evidence points against them. The University applies a higher “clear and persuasive evidence” standard instead, which is analogous to the "clear and convincing" standard used by the courts in some cases. Criminal cases employ a still-higher "beyond reasonable doubt" standard, which some said was too high for the Committee's purposes.

Princeton is somewhat of an outlier among peer institutions when it comes to standards used to adjudicate campus disciplinary action. All other Ivy League institutions except Harvard utilize the “preponderance of the evidence” standard. Harvard uses a “sufficiently persuaded” standard, which requires more evidence than the preponderance standard but does not correspond to any particular outside legal standard and has been criticized as vague.

However, students who have gone through the process and the professors and lawyers who advise them say the process is marred by a presumption of guilt and inconsistent application of a respectably high standard of evidence.

“We don’t do the criminal justice system in that manner, and we shouldn’t do it [that way] at Princeton,” R. William Potter ’68 said. Potter is a local attorney who has advised students going before the Committee. “And let’s face it. Something like suspension or expulsion from the University is a kind of quasi-criminal penalty. It’s a form of exile.”

“And certainly it is a scarlet letter on the person’s record for the rest of their lives,” Potter added.

Such criticism of the Committee strikes at the heart of the debate over the role of campus discipline committees, which are not in any way unique to the University. Deignan said the University treats discipline as an educational process, noting that the way the procedures are designed and the way the Committee members ask questions are intended to help the students learn from their alleged mistakes. Critics contend that this approach ignores procedural fairness, violating student rights.

Harvey Silverglate ’64, a Massachusetts criminal defense attorney who runs the Foundation for Individual Rights in Education, argued that the educational language formally describing the mission of the Committee helps the Committee avoid being held accountable for seeming violations of due process.

“It’s an exercise in the students learning that they’re hopeless in the face of the Leviathan,” Silverglate said.

Deignan said that during her time at the University, the Committee has never wrongfully convicted a student, attributing this fact to the high standard of proof the University sets. However, she noted that Committee has probably let guilty students off in the past due to lack of evidence.

“Your instincts are telling you that this doesn’t feel quite right, but the evidence wasn’t there,” she said.

Uncertainty over timestamps?

At the hearing, as well as in a later interview, the accused student who provided the recording of her hearing to the ‘Prince’ maintained that the whole situation had been an accident. She admitted that she had downloaded code as reference for the assignment, but added that rather than intentionally plagiarizing she had accidentally submitted the downloaded file, which had the same file name as the file that contained her own work.

In her defense, the student and her adviser, a computer science graduate student, argued that she had saved the file containing her own work before the assignment’s deadline, pointing to the file’s timestamp as evidence.

"But the Committee questioned that line of defense, instead at one point suggesting that student only created the second file after she learned that she was accused of plagiarism. Committee members noted that it was possible to alter the timestamp on the file, but did not present any evidence that the student in this particular case had in fact altered the file’s timestamp.

Deignan outlined the main question the Committee had to answer: whether there was clear and convincing evidence that the student had intentionally submitted the plagiarized file and only completed the assignment after the due date.

"Deignan’s statement was the last mention of the possibility of altered timestamps in the entire hearing. However, this particular moment in the hearing apparently weighed significantly in the Committee’s decision.

The decision letter sent to the student the next day explained that “the Committee was persuaded that the code you brought to your second interview with [Associate Dean of the College Victoria Jueds] on March 12 constituted fabricated evidence.”

Jueds, as secretary to the Committee, does not vote on a case’s outcome, but collects all evidence related to the allegations and presents it to the student before the hearing.

“You explained that this was original code, written without the use of any [impermissible] outside source, and that this was the code you intended to hand in,” read Jueds’ letter. “The Committee found this explanation implausible, and instead agreed that the original code could not have existed when you first [met] with me, let alone when you handed in Assignment No. 2.”

The letter acknowledged that there were some “unknowable” things about the case, such as why the student would have plagiarized given that her code was largely working when she visited a preceptor during office hours before the assignment was due. The preceptor had confirmed this fact during the hearing. Nevertheless, Jueds wrote that “these uncertainties did nothing to diminish the clear and persuasive evidence of your violations.”

The student in this case was suspended from the University for one year. The Committee added “censure” to her punishment to indicate their belief that she had been dishonest with them. She has now spent two semesters away from the University, and permanently has a note on her transcript indicating that she was suspended for plagiarism.

The Committee also argued that the course’s policy prohibited consulting online resources in completing assignments, and thus the student was in violation of course policy simply by searching for information online. The student and her adviser disputed this, arguing that course policy was ambiguous and that students frequently searched for hints and tips online.

Students and faculty currently serving on the Committee either declined to comment or did not respond to requests for comment.

A stacked deck?

Before the hearing, the student had previously met with Jueds, who had presented her with the evidence against her. During the hearing, Committee members said they thought that she only wrote her own code after this meeting, which could potentially explain why the student did not inform her professor that she accidentally submitted the wrong file until 36 hours after she met with Jueds.

The student appealed the decision to Dean of the College Valerie Smith, who can receive appeals on the grounds that there is additional information that could not have been permitted during the hearing or that the penalty imposed is inconsistent with previous penalties for similar cases.

In her written appeal, the student detailed her activities and alibis in the days after she met with Jueds, arguing that she would not have had time to write the file.

The verdict and punishment came as a surprise, the student said in an interview, adding that the burden of persuasion had been placed on her to prove she had acted honestly, where it should have been the Committee’s responsibility to prove she had altered the timestamp.

In the meeting with Jueds, the student did not immediately recognize that the supposedly plagiarized code was not her own, she and Jueds both said in the hearing. The student argued this was because she didn’t spend much time looking at it. Committee members suggested that if she had really submitted the code by mistake, she would have instantly recognized the code was not hers, and questioned why she did not spend more time looking at it.

“You’re told that you’re going before the Committee on Discipline for this code, and you don’t look at it?” history professor and then Committee member Michael Gordin asked during the hearing.

Asked why she waited 36 hours to inform her professor, the student said it was because he would not have replied to the message.

“He wouldn’t what?” a shocked Deignan said in response.

“You waited until Thursday to tell him you made a mistake, and you submitted a code and you’re being accused of plagiarism, for two days … Why? Because he wouldn’t check his email?” Gordin asked.

The way the Committee members asked some of their questions, which the student said mixed accusations and questioning, left her wondering whether she’d already lost her case.

“They’re the jury and they’re the prosecutors,” she said in an interview.

Gordin, who declined to speak about this particular case although he agreed to answer general questions about the Committee, said statements such as these reflected his genuine surprise, not a presumption of guilt.

“It would be nice if we were able to be completely dispassionate, but sometimes someone says something and I’m like, ‘Oh, that just seems like not how I would behave,”’ Gordin said. “That’s not dispositive. That doesn’t say that someone’s guilty.”

Potter, the local lawyer and occasional adviser to students, said the roles of questioner and decision-maker were conflated during a case he witnessed after accusing a student of plagiarism in a politics course he was precepting. This is concerning because the Committee becomes invested in its own arguments, clouding its judgment of others’ cases, he said.

Wilson School professor Stanley Katz, who attended Harvard Law School and has advised several students accused of violating University regulations, said the Committee’s bias in favor of its own arguments results in a presumption of guilt.

“That’s in my mind a violation of the basic principle of fairness in a quasi-judicial proceeding,” he said.

Deignan said the Committee “absolutely” presumes innocence, and that the burden of persuasion rests squarely on the Committee to demonstrate clear and convincing evidence.

She said she understands some students feel the deck is stacked against them, but that this perception comes from the strength of the evidence the Committee collects before finding a student responsible.

Deignan pointed to the Committee’s "clear and persuasive" standard as an indication that it does not take its work lightly. She explained the Committee recognizes that suspension and expulsion are severe penalties, and that this makes it crucial to be confident in a guilty verdict.

While some accused students claim the deck is stacked against them, other critics contend that the system goes too far in protecting certain perpetrators.

Advocates for rape victims have criticized schools like Princeton that continue to employ a clear and persuasive standard in sexual assault cases, making it more likely an alleged rapist will avert consequences. A 2011 "Dear Colleague" letter issued by the federal Department of Education recommended using a preponderance of the evidence standard. Princeton did not lower its standard in response, noting that the recommendation did not carry the force of law.

‘And then what happens?’

Despite the high standard of evidence, some students who felt they were wrongly accused said Committee members’ actions during hearings were not fair, no matter what ideals the Committee purported to hold.

During her hearing, Committee members frequently asked the student to provide a detailed walkthrough. In this case, this included everything that happened from “the moment you open the file to the time you turn it in,” Gordin said.

During the student’s explanations, Gordin asked for more and more detail, prodding her to “be a little bit more precise about your memories” and saying “when I said detailed, I meant really detailed,” following a question about what time she went to bed on a specific date three weeks before the hearing occurred.

The hearing is peppered with a constant chorus of phrases such as “Then what happens?” and “and then what?”

Potter, the local attorney, characterized such practices as “inviting confession.”

“They should not be asked to spill their guts in front of the Committee,” he said.

The student said the system perversely encourages self-incrimination.

“Censure wouldn’t have been added if I had said, ‘Yes, I did it,’” she said. “I tried proving the truth and this is what they did to me.”

However, Gordin said that committee members are instructed to ask for very specific details, Gordin said.

“That method of trying to be really specific is a standard practice just to actually figure out what happened,” he said. “I imagine some students might interpret that as trying to get a confession out of them, but if they don’t remember, they honestly don’t remember, and that’s sometimes true.”

Deignan pointed out that the Committee’s purpose is meant to be educational for the accused students, rather than punitive. Since the hearing is not a court of law, the implications of self-incrimination are not as severe as they are in the U.S. legal system, she said.

Given the academic setting and the Committee’s educational goals, Deignan said members expect accused students to be “honest and straightforward.” She said the Committee is not sympathetic to a student whose “main objective is simply to avoid punishment and therefore thinks he or she shouldn’t have to ... incriminate themselves.”

Limited penalties

Katz, the Wilson School professor, said he had no problem in theory with an approach that treats discipline as an educational matter. However, he added that because the stakes are so high — students who are found to commit minor acts of plagiarism often face a one­-year suspension — more due process must occur.

Princeton’s range of penalties is more limited, and the punishments are more severe than many of its peer institutions. A review of the University’s annual disciplinary reports for the past three academic years indicates that most students found responsible for academic violations are suspended. Students receive disciplinary probation when the Committee determines that a “reasonable person” may not have realized they were committing plagiarism.

By contrast, Brown University’s academic code allows students who committed less severe acts of plagiarism to fail the assignment they plagiarized, or fail the course in which they plagiarized. Harvard’s Administrative Board has these options as well, and also allows the student’s professor to determine the penalty in certain cases.

At other peer institutions, probation and suspension are the only options, but students may be suspended for less time; at Princeton, the minimum suspension for any violation of University policy is two semesters.

Deignan said these penalties are appropriate in an academic community, where academic integrity is a core value.

“These are longstanding responses to violations the University thinks are serious,” she said, noting that harsh penalties even in less severe plagiarism instances are necessary to uphold the community’s values.

At a place where academic integrity is a “foundational value,” a suspension is a punishment that fits the crime, she argued.

She also cautioned against allowing faculty members to determine punishment for the cases they bring up to the Committee, since the University wants to make sure that penalties are equitable across courses and departments.

After the hearing

The student suspended last March submitted her written appeal to Smith one day after the hearing. The appeal argued that the fabricated evidence conviction was based on a presumption of guilt, and the Committee had no evidence besides a hunch.

Smith denied her appeal, noting that the student submitted copied code without addressing the question of whether she intended to or not.

“You copied code from the internet and submitted it without attribution for Assignment #2,” Smith wrote. “The Committee on Discipline therefore found you responsible for plagiarism.”

The student returned home for the final weeks of the spring semester and the entirety of the fall semester.

If she had decided to sue the University, her chances in court would have been slim, whether or not the University reached the right conclusion.

“There’s a very strong sense of judicial deference to the University in administering its own affairs,” Potter said.

Katz said he has frequently advised the parents of suspended students not to pursue legal action against the University, since “their first instinct is to think that they ought to sue the University. And they’re not going to win.”

Silverglate said that although universities’ written disciplinary codes constitute a contract that courts have recognized, the judicial system has held schools only to the codes’ general spirit, not to the letter. Thus, students suing on grounds of procedural unfairness don’t stand much of a chance.

The University’s disciplinary system has been challenged in court many times, including two seminal cases in the early 1980s. In both cases, judges upheld the University disciplinary bodies’ decisions, reaffirming the University’s right to discipline students how it sees fit.

In Napolitano v. Princeton University, Gabrielle Napolitano ’82 alleged the Committee on Discipline wrongly convicted her of plagiarizing a Spanish assignment. A New Jersey appeals court found that courts should not serve as a “super-trier” in University due process cases.

Robert Clayton ’82 sued the University in 1980, claiming the student-run Honor Committee had not afforded him due process before suspending him for cheating on a biology lab assignment. In 1985, after multiple appeals, a federal district judge ruled that the University had given Clayton “fundamental fairness,” which is “all that the law requires.”

These cases have served as precedents for New Jersey Superior and Appellate courts in more recent cases. University General Counsel Peter McDonough pointed to six cases since the Clayton decision in which courts have sided with the University’s right to conduct its affairs independently, most recently in 2010.

Proposals for change

For those who believe the Committee should reform its practices, the main question is how to strike a balance between the need for greater due process and the benefits of more expeditious and informal hearings.

Potter said he understood that “overjudicializing” the system could have adverse consequences, but that since the penalties were so severe, accused students deserve more due process than they are currently getting. He noted that students should not be prompted to reveal everything that happened during their initial meeting with the associate dean, since they are not adequately informed that what they say can be construed as evidence of a confession.

Instead, he proposed that the University set up an independent office called "Student Advocate" or "Student Ombudsman" to confidentially consult with accused students, go over the evidence with them and help them prepare for the hearing.

Katz said he is sympathetic to the concerns about making the process too judicial, and suggested that reforming the penalty scheme could make the procedures fairer. He said the insistence on harsh punishments makes the system punitive, rather than educational, in nature.

“None of it would bother me so much if we more frequently slapped people on the hand,” Katz said. “But so long as we give what seems to be really severe penalties, for what I think are not trivial but essentially venial kinds of offenses, then it’s a system I think that can’t achieve an appropriate educational goal.”

Deignan said that overall, the presence of both students and faculty members on the Committee helps ensure procedural fairness and an accurate outcome. She noted that the student and faculty members of the Committee are respectful of one another’s views, and that the faculty do not exert any sort of pressure over the student members as some outside observers may expect.

She said the decisions in most cases were unanimous, and whenever there is a split vote, it is rarely students on one side and faculty on the other.

“Particularly with respect to academic cases, a faculty member is bringing a case before the Committee and a student is being charged, and having the perspectives of students and faculty is so important, and while they represent different perspectives, they are remarkably aligned in their assessment of the facts,” Deignan said. “It’s a wonderful process.”

This article is the first in a three-part series examining the University's Committee on Discipline.