SEPARATE STANDARD: UND changes stance after punishing student for crime police won't charge
October 31, 2011
A disciplinary panel at UND decided that Caleb Warner had, among other things, violated criminal laws against sexual assault. The police investigated and, instead, charged his accuser for false report. Though the university reversed sanctions against Warn
by Tu-Uyen Tran
Grand Forks Herald
In February 2010, a disciplinary panel at UND decided that Caleb Warner had, among other things, violated criminal laws against sexual assault. He was kicked out and told that he could file an application to come back after three years.
Grand Forks Police investigated the case and, instead of charging Warner, charged his accuser Jessica Murray for false report in May 2010.
It wasn’t until October of this year that the university reversed its sanctions against Warner, and even then it only conceded that its disciplinary panel should have held another hearing to consider the testimony of a police officer.
“There was an element of the administration that took a hyper-technical view of things that it turned it into a profound injustice,” said Nathan M. Hansen, Warner’s attorney. “It took a different eye to look at it. Some more open-minded people higher up in the administration stepped up and said, ‘Let’s do what’s right here.’”
Asked how it’s possible that UND could punish a student for breaking a criminal law when the criminal justice system didn’t think he did, university officials say that the disciplinary processes of the two groups are separate.
“Both processes are important,” said Cara Halgren, the dean of students and the official charged with reviewing infractions of the student code. The university, she said, has an interest in ensuring the safety of its students.
Indeed, under Title IX, the federal government requires education institutions that receive federal funding to act even if the police won’t for lack of evidence.
In an April letter, the Department of Education said the “preponderance of the evidence” standard must apply, which is much less stringent than the “beyond a shadow of a doubt” standard for criminal trials. However, it’s the same standard required by the Supreme Court in certain Civil Rights violations.
Warner declined to comment for this story, saying he felt too emotional about it.
But his mother Sherry Warner-Seefeld said he’s recovering from the ordeal.
“He’s surrounded by a loving family and hundreds of friends who care about him,” she said. “He’s just the kind of kid that everybody likes. He’s in a place where he needs to be to heal, if he can heal from that loss of trust.”
“He was brought up to believe that the thing that is right and truthful will win out,” she said.
At one point, the family was prepared to hire a public relations firm if Warner could not convince UND to give him a new hearing. LeBel’s reversal of Warner’s sanctions appear to be enough.
“I don’t foresee a civil lawsuit,” Hansen said.
The Herald attempted to call Murray and her parents, but was unsuccessful.
After Murray filed a complaint against him, Warner faced the Student Relations Committee, whose job it was to determine if he violated UND’s Code of Student Life. The panel is made up of three faculty members and three student members, all drawn from a pool appointed by the administration.
Its procedures somewhat resemble that of court trial, except the accused, not his attorney, defends himself, making arguments and interviewing witnesses. The “prosecutor” is a judicial officer from the Office of Student Affairs.
“The entire defense had to be run by Caleb, who is not a legal expert, and he had 10 days to prepare the defense for himself,” Warner-Seefeld complained.
University officials won’t talk about the specifics of the case, citing federal privacy laws. But a letter UND sent to an advocacy group supporting Warner indicates that these issues came before the panel: Murray and Warner had been drinking and “making out.” They had sex afterwards and she spent the night with him. Text messages exchanged show that it was consensual sex.
The Student Relations Committee considered various contradictory information and concluded Warner had violated the Code of Student Life. First, he had violated criminal laws. Second, the specific law violated was the one against sexual assault. Third, his actions interfered with another person’s educational opportunity.
The UND code’s version of “preponderance of evidence” standard is the “more likely than not” standard.
In May 2010, police investigating the alleged sexual assault decided it was likely that Murray had lied. The states attorney’s office filed a complaint and got a warrant for her arrest, though it did not seek her extradition from California, where she lives.
Warner’s attorney sought a new hearing in July, but UND’s then-Vice President for Student and Outreach Services Bob Boyd said the deadline for an appeal had passed.
The Foundation for Individual Rights in Education, or FIRE, a civil liberties group advocating for Warner, said that “substantial new information, unavailable during a prior hearing,” was grounds for a new hearing.
But Julie Evans, the university’s attorney, said in letter to the group that most of the information gathered by police was already available at Warner’s hearing.
“The only difference is that a police officer would deliver the information this time — instead of the witnesses previously called,” she wrote.
Provost Paul LeBel looked into the matter in July, shortly after an opinion piece by FIRE appeared in the Wall Street Journal. He concluded that UND had erred in not considering police testimony. “The professional judgment of a trained law enforcement officer that there was probable cause to doubt the veracity of the information provided to the officer by the complainant,” he wrote, was a “compelling piece of evidence.”
Given police’s belief that Murray lied, he said, the disciplinary panel’s conclusion that Warner had violated code could not be substantiated. He recognized, though, that whether Murray did lie or not cannot be determined and likely won’t be because she can’t be extradited to North Dakota to stand trial.
What ramifications does this have for UND’s disciplinary procedure?
Asked this question, Lori Reesor, Boyd’s replacement, and Halgren both said the Code of Student Life is reviewed annually and needed changes are made. Neither can say exactly how or if it will change given LeBel’s findings.
What is clear is UND will continue to weigh in on criminal issues, if students are involved, in a parallel process to the criminal justice system.
“The way it happens is that those processes may work simultaneously in some situations, but in others they may not,” Halgren said. “It’s still important that the university has its system to be able to address behavioral issues that may be a concern for students being part of this community.”
UND is not alone in this. The U.S. Department of Education expects that all educational institutions will do the same. In an April letter defining its stance on sexual violence, Russlynn Ali, the assistant secretary for civil rights wrote: “Conduct may constitute unlawful sexual harassment under Title IX even if police do not have sufficient evidence of a criminal violation.”
The letter said schools must not wait for the conclusion of a criminal investigation to begin their own investigations. If needed, they “must take immediate steps to protect the student in the educational setting.”
In its opinion piece, FIRE’s Chairman Harvey Silverglate decried Ali’s letter and the “preponderance of evidence” standard. “Such a standard would never hold up in a criminal trial,” he wrote.
But Ali noted in the letter that this is the Supreme Court’s standard for Civil Rights civil litigation.
Reesor said UND’s disciplinary process is an “educational process,” not a criminal process. Other institutions, such as high schools, have separate disciplinary processes, too, she said.
And even in the court system, a person can be found not guilty in a criminal trial and guilty in a civil trial, she said. “Different standards, different expectations, different processes,” she said, summarizing.