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Student conduct policies ‘increasingly complex and legalistic’

Consultant Robyn Jacobson discusses how these policies work, how they’ve developed over time and how they can be better.

By NATALIE SAMSON | MAR 16 2015

Robyn Jacobson.
Robyn Jacobson.
Robyn Jacobson is a Toronto-based consultant and trainer on conflict management in educational settings. In 2012, she earned her PhD from York University’s Osgoode Hall Law School, where she researched the conflict-management processes and documents from 20 Ontario universities. Her career in higher education has included several senior positions such as assistant dean and university judicial affairs officer at institutions in her native South Africa. In light of several high-profile cases of student misconduct making headlines in the past few years, University Affairs interviewed Dr. Jacobson to find out more about university codes of student conduct – why they exist, how they work and how they’ve developed over time.

UA: Why do universities need student misconduct codes? What purpose do they serve?

Dr. Jacobson: The policies exist to manage conflict on campus between students and the institution when the behavioural codes or community standards are breached. What I find interesting is that students on many campuses have been opposed to these kinds of codes of conduct, especially when it deals with behaviour that’s not really related to academic issues. My feeling on this is that the resistance is misplaced. It’s preferable to have collaboratively drafted policies than for students to depend on a body like the senate or a person, like the president, to deal with student discipline.

Universities want to ensure the rights of students are protected, especially in the case where a penalty may impact the student’s academic pursuits – suspension, or expulsion, for example. So, [these policies] exist for the benefit of the student. But they also exist to protect the institution and ensure that decisions of their tribunals are not overturned on judicial review by the courts.

UA: How did the student code of conduct process come to be so complicated?

Dr. Jacobson: Many of the institutions started off with policies dealing [only] with academic misconduct – cheating, plagiarism, etc. Over time, they’ve added other provisions related to non-academic misconduct. These have become, as a result, really complex and hard to understand. But even those policies that deal only with non-academic misconduct have become complex as previously unthought-of incidents occur on campus or at other institutions, or court decisions necessitate an amendment to the policy.

UA: Such complexity has led to complaints from students and faculty that these documents are too difficult to navigate when something serious happens.

Dr. Jacobson: Exactly. And sometimes, it’s not just one document you have to consult, but several. In the end, it becomes very unlikely that students can make sense out of them. Often I think even the tribunal members are going to have extreme difficulty understanding these documents. They have legal terminology throughout, phrases like “conviction at trial,” “stalled decision,” “defendant and respondent,” “stay of execution of decision.” I took this one directly out of a policy: “Nothing is admissible in evidence at a hearing that would be inadmissible in a court by reason of any privilege under the law of evidence or by statute.” Well, good luck to anyone trying to make sense of that.

UA: Does it make sense to fold everything into a single, general student misconduct policy, or do you support the creation of stand-alone policies, like a sexual assault policy?

Dr. Jacobson: I don’t think it’s possible to fold everything into one policy. I think that’s how some of them have become so difficult to manage and understand. The stand-alone policy allows the committee drafting the policy to think about it from the beginning. That’s where some of these [general] policies have gone wrong. They’re simply trying to add in and utilize existing terminology to cover a new situation. When sexual harassment policies were introduced they were all stand-alone and they often referenced informal dispute resolution processes, such as restorative justice practices, which fit well in these circumstances. These stand-alone policies allowed new ideas to be introduced instead of trying to incorporate them into existing policies where they aren’t really applicable.

UA: It seems that each institution uses different nomenclature for these documents, too, from “policy” to “protocol” to “code.” Do you have a preference?

Dr. Jacobson: My preference is for a Charter of Student Rights and Responsibilities that provides a balance of entitlements and obligations.

UA: What makes for a good conduct policy?

Dr. Jacobson: Policies should be easy to read, easy to understand and easy to use. A well-drafted policy protects students. It should stipulate required community standards, possible outcomes for breaches, and the checks and balances in place to ensure that a student who does transgress these community standards will have a hearing where procedural fairness occurs.

To elaborate, they should not have legalistic terminology and complex provisions. They should have provisions, though, for early and informal resolutions [to complaints]. And where a matter has to be adjudicated, a non-adversarial process should be utilized, one that does not pit the students against the university.

Policies should be collaboratively drafted by all stakeholders. And students need to know about the policy and how to access it. In order to have buy-in, you need to reflect the values, goals, guiding principles of the institution. They must advance the educational mission of the university and incorporate learning opportunities in the processes.

UA: Can you think of a specific example of what you would consider a well-written policy addressing non-academic student misconduct?

Dr. Jacobson: I think the York University code of student rights and responsibilities is an excellent policy. I served on that committee. We reviewed the existing code of student conduct and established a new code of student rights and responsibilities. This policy introduces different types of informal dispute resolution at a very early stage – like advising, conflict coaching, conciliation, mediation, restorative justice circle processes – without using legal terminology. … [It’s] written in straightforward, clear language. It’s not students being asked if they’re guilty or not guilty, but “Do you admit or deny responsibility for what occurred?”

UA: How long did the review and revision process take at York?

Dr. Jacobson: It was a four-month process in which the committee met every week for about two hours. And there were a lot of resources put into it: the vice-president chaired it, various members of the university participated, including student representatives. Drafting policies collaboratively is a time-consuming process, but I think the outcome is really beneficial because you have buy-in to the process, it better reflects the needs of the community … and it gives legitimacy to the process.

UA: What’s stopping other schools from doing something similar?

Dr. Jacobson: I think a lot of policies are amended when and if it becomes necessary. But to actually sit down and do a complete review of a policy takes a lot of time and a huge commitment. I think good policies should stipulate how often and when they should reviewed. That might cause the university to sit down, look afresh at the policy and if it’s accomplishing the goals or objectives it was meant to achieve.

UA: Should a policy allow for automatic expulsion for a student who’s found guilty for a crime?

Dr. Jacobson: I would think there’s still a place for a student to be able to give their side of the story to the university and for the university to make that decision.

UA: Should the same policies apply to misconduct that occurs online?

Dr. Jacobson: Social media are certainly becoming increasingly common and in many cases university policies do not make reference to these online interactions. So, when you have racist, sexist, homophobic, misogynist, threatening or even bullying comments being made on social media, many institutions have tried to utilize existing policies to deal with the unacceptable behaviour.

I think it’s essential to clarify what is desired and acceptable online behaviour. But, there’s a balancing act that’s needed. I think it’s important to also protect the privacy of community members as well as protect academic freedoms. The university would need to consider, for example, whether there’s a difference in how it responds to a student making generally racist or sexist comments on his or her Facebook page and how it responds to those comments being made to another student or professor. Similar to the conduct occurring off-campus, in this situation, we have to think, is there a connection to the university?

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