Justice and the Ad Board
The College says the Ad Board holds students' interests at heart. But who holds it accountable?
It's Friday night--a woman undergraduate is hosting a party in her dorm room. It has gotten out of control. The Harvard University Police Department (HUPD) and two House tutors arrive on the scene, but the host is too drunk to interact with the officers or control the situation.
The officers take her name, and on Monday morning, her Allston Burr senior tutor gets a copy of the HUPD report, as does Dean of the College Harry R. Lewis '68. Because of her history of alcohol abuse, the student is placed on probation by the College's Administrative Board.
This is a fictional account from the student guide to the Ad Board, but it illustrates the close relationship between HUPD and the school's disciplinary body.
HUPD Officer Andrew Gilbert says that he usually gets ready cooperation from students, not because of his gun and badge, but because of the looming threat of Harvard's Ad Board.
"They can do far worse damage than I can," he says.
Ad board members emphasize, however, that they are primarily educators, not prosecutors.
"We are not a police force, we do not have a court model. Senior tutors act in the student's best interest. That may not be in the student's mind at the time. But we are obliged to act in the College's best interest," says Thurston A. Smith, secretary to the Ad Board.
But the Ad Board has the unique power to require a student to withdraw for a period of time and recommend a student to the full Faculty for dismissal or expulsion.
In other words, the Ad Board lays out the law of this land.
And the Ad Board is privy to evidence gathered by HUPD and information a student tells a senior tutor in confidence--and in certain cases consults with Harvard's top attorneys in the General Counsel's office to decide a student's future at Harvard.
Although the Ad Board thus has a professional police department supplying it with private reports about students, the liberties guaranteed the accused in local, state and federal courts don't apply for Harvard students when they are facing the Ad Board.
Students can't have an attorney speak for them during their Ad Board hearing, they can't cross examine those who bring charges against them, and they aren't guaranteed that the witnesses they choose to speak for them will be called. In some cases, Lewis can ask a student to leave the College before the Ad Board has heard the individual's case.
Lines of Communication
The members of the Ad Board are almost all University administrators, including the associate and assistant deans of the College, the freshmen deans and the senior tutors from the 12 Houses. No students sit on the Board, and only two Faculty members serve on the Board in any given year.
HUPD and the Ad Board work hand-in-hand. Every time HUPD writes a report about a student--an incident report much like a standard police report--the Dean of Harvard College and either the Freshmen Dean's Office or the student's House office gets a copy.
At the next Board meeting, the administrators examine the reports, and in most cases take no action.
"There is often some kind of report to the Board, in the way the resident deans share other info about goings-on in the community, as a way of dealing with exaggerated rumors," Lewis writes in an e-mail message.
He estimates that about twice a month the board discusses disciplinary action based on the findings of a police report.
If the offense is serious enough to merit court action, the Ad Board will usually delay its decision to avoid creating paperwork the court could subpoena, says Cabot House senior tutor Robert H. Neugeboren.
The Board, he says, considers itself to be less adversarial than the courts and expects students to tell the full truth before the board.
Sometimes student behavior is a Harvard offense but not a criminal act. In this case, the board may act on the police report and will call the officer for more information.
A Closed Court
HUPD turns evidence over to the Ad Board, which, unlike a court of law, is not bound by the legal principle of due process.
This cooperation--between a police force and a private, disciplinary body--is matter for concern, say both Alan Kors, a history professor at the University of Pennsylvania and Harvey Silverglate, a prominent Boston civil rights attorney. The two have co-authored a book about campus justice entitled The Shadow University.
"HUPD is empowered by the Commonwealth of Massachusetts, but who pays them?" Silverglate says, referring to the University.
The problem, Kors says, is that no independent body evaluates evidence in a student's disciplinary case. They also point to the possibility of the General Counsel's involvement in Ad Board proceedings as creating an unfair environment.
"All administrative wings of the University have a fiduciary obligation to the [Harvard] Corporation," Kors says. "The office of the General Counsel has an absolute commitment to the Corporation, to its financial and legal interest."
Kors says that with Harvard's current system, there is nothing to stop General Counsel from intervening in an Ad Board process or deciding what evidence gathered by HUPD should be considered by the Ad Board. The University, he says, could be concerned about future lawsuits and try to shape the Ad Board process to prevent them.
Or, Silverglate says, the General Counsel could, hypothetically, ask the Board to pardon the son or daughter of a wealthy donor.
"What administrator has the right to say no to the Corporation's attorneys?" Kors says.
But Robert Iuliano, who has been an attorney with the General Counsel's office for seven years, says that his office doesn't have this type of involvement in Ad Board cases.
"The responsibility for student discipline rests with the administrative board (subject, of course, to faculty oversight) and it alone decides how a given matter should properly be resolved," he writes in an e-mail message. "It is inconceivable to me that anyone in the University would attempt to influence the Board's decision in a case, nor would the Board be receptive to it."
Smith, who's been "on and off the Ad Board for sixteen years" says that in his experience, the Ad Board only consults with General Counsel about the course of action it plans to take in a particular case.
"Our questions for General Counsel are most only ones of process, we go to them and say this is what we are planning to do, is this appropriate?' Are we doing what we say we're going to do [in the Handbook for Students]," Smith says.
More Procedure, Less Discipline
Members of Harvard's Administrative Board say that the typical Tuesday afternoon Ad Board meeting doesn't usually have a docket full of particularly sensitive cases--like issues of assault or sexual violence.
"Disciplinary matters represent a rather small percentage of the Administrative Board's business," writes John Gerry, Allston Burr senior tutor of Quincy House, in an e-mail message. "Students are fascinated by the disciplinary' aspect of the Administrative Board but do not recognize that most of what we do is routine and rather mundane."
But while the Ad Board dealt with 2,150 "routine and special petition" cases in 1999-2000--like requests for make-up exams--it also oversaw 136 discipline cases.
And 14 of those cases were serious enough that the students involved were ultimately asked to withdraw from the College.
While Faculty members might not be necessary for routine matters, Kors criticizes Harvard for using mainly administrators--not more independent tenured Faculty members--to hear important subcommittee evidence. Lewis appoints subcommittee to gather evidence, talk to witnesses and summarize the reports for the whole board.
This several person group interviews the accused student and the accuser if there is one in the case, as well as any other witnesses or people who could shed light on the case. This could include interviewing HUPD officers, if clarification or elaboration is needed on an original police report.
"We tend to choose among the resident deans and a very few experienced administrators on the Board, rather than the at-large professors, whose schedules are harder to accommodate," Lewis writes.
Although a student is allowed to respond to the summarized evidence that the subcommittee presents to the entire Ad Board, Lewis notes that the subcommittee is not bound to interview every witness the accused student asks for.
"The chair uses his or her best judgment about whether those people need to be heard from in order to determine, with a reasonable degree of confidence, what actually happened," Lewis writes. "One tries to get information, either in writing or in person, from the people who were direct witnesses, but for everyone's benefit, we don't want subcommittee procedures to drag on forever talking to people who have very limited factual information to supply."
Edward N. Stoner II, an attorney in Pittsburgh who specializes in writing disciplinary codes for universities, says that he is surprised that students do not sit on Harvard's Ad Board.
He notes that the schools he has worked for typically have students involved in their disciplinary body, at least at the evidence gathering stages.
"An administrator might decide what to do about an event, but students are closest to what is normal behavior for a 19-year-old and are valuable when evaluating what happened [in a situation]," he says.
Members of the Ad Board say students are not invited to be on the board because they cannot guarantee their peers confidentiality.
But students can serve on the Student Faculty Judiciary Board (SFJB) for cases that have no precedent or have grave implications for the community. The SFJB has only heard one case since it was created in 1986.
Kors says only putting more students and faculty on the board will allow it to make decisions independent of the University. Neither group would be beholden to the interests of the general counsel or the Corporation in the same way that administrators are.
"It would be good for students to serve on the Ad Board, to de-mystify it. [The Ad Board] would be a lot less draconian, not like a TV sitcom," says Deborah Foster, an assistant dean for undergraduate education.