When someone is accused of a crime in the United States, their rights and freedoms are at stake. If convicted, not even the 13th Amendment, which bans slavery, protects them. That is why our founding fathers have agreed that the government’s ability to make someone a criminal is so dangerous that it would be much better to let a guilty person free than to convict an innocent person. To preserve such a system, a litany of rights were added into the Constitution including the right to a fair trial by an impartial jury, the requirement for probable cause for search and seizure and a burden of proof beyond a reasonable doubt. Drexel University students have less rights than America’s worst criminals.
In the Student Conduct discipline process, which operates similarly to the justice system, the burden of proof is merely by preponderance of evidence. That means that a student can be found responsible for a Code of Conduct violation and face the subsequent consequences – even expulsion – with just a 50.01 percent likelihood of the evidence being true. In other words, if the evidence is more likely than not against the student, the student is found responsible. If an AI checker found that a portion of a paper was more likely AI than not, that could be grounds for academic dishonesty unless the student can prove otherwise (but how do you prove that if there is no version history?).
The Code of Conduct also offers none of the substantive or procedural protections that criminals enjoy. While Drexel is technically bound by certain privacy laws, these laws are of little comfort on Drexel’s digital network. There is no probable cause requirement for Drexel investigators to go through what would be private to anyone else, and there is no explicit prohibition against Drexel using evidence that was unfairly obtained or for relying on evidence that would otherwise be inadmissible due to irrelevancy or the amount of inferences that would need to be drawn to support the conclusion that the evidence is trying to support.
The Code of Conduct also contains no explicit right to remain silent. Typically, in civil cases judged under preponderance of the evidence, jurors are allowed to draw an adverse inference from remaining silent. In the context of a Drexel hearing, that means a student may have to risk testifying against themselves or be expelled. Not only is it cruel to force someone to betray their own conscience but also is fundamentally unfair for the burden of proof to lie on the student to prove their innocence when the school can rely on coercion, intimidation and twisting someone’s words to try to extract a confession. This is doubly true if there is a concurrent criminal investigation.
Furthermore, according to the format of a University Conduct Board hearing, students do not have the basic right to an attorney or the benefit of an adversarial process. This puts students in the highly unfair position of having to understand 73 pages of the legalese-filled Code of Conduct, present their case and answer questions by members of the Conduct Board by themselves under the stress of potential punishments that often range all the way up to expulsion. If the stress of giving a class presentation under the threat of receiving a bad grade is enough to make a student forget, stutter, mess up and freeze, the stress of potentially getting expelled or getting a degree withheld will definitely lead to slip-ups that an attorney trained in defending such people could prevent.
This is also not an adversarial process which means it becomes the judges’ responsibility to try to argue against the student’s case and to ask questions to test credibility. It also shifts the burden of proof to the student to prove innocence which becomes fundamentally unfair because evidence of a negative does not always exist. Not everyone can always prove an alibi.
Let us remember what the point of a trial is. It is not to let defendants get away with committing crimes. It is to force the accuser to prove their case. This is especially important in cases where there is a power imbalance and the student relies on their school to provide an education that will help them have a career. Drexel’s system is a kangaroo court designed with fewer rights than those of a criminal. As the one with power and the ability to tell its side of the story first, even though Drexel is not legally obligated to, it ought to design a fair disciplinary system where it must do the work of proving guilt in the interest of justice.