Nothing But the Facts

This year, the Administrative Board of Harvard College has changed its policies to allow a single fact-finder to conduct investigations in certain student disputes. According to Assistant Dean of the College Karen E. Avery ’87, the fact-finder may be assigned to sensitive cases, like those of rape and sexual assault, and would replace the three-to-four person subcommittees that have handled the collection of evidence in the past.

Although Avery has noted that the addition of the investigator helps to speed up Ad Board proceedings, which have been attacked in the past as being far too slow, the decision to place such significant responsibilities for fact-finding on one individual is very concerning for Harvard students faced with a process that already lacks basic elements of fairness.

For years, the Ad Board has been criticized for not providing students with effective justice in serious disciplinary cases. When investigating an accusation of a disciplinary infraction that constitutes a serious criminal offense, an Ad Board subcommittee cannot function with the efficiency or the effectiveness of a court of law, and it should whenever possible defer its fact-finding role to the legal system. Unlike the Ad Board, courts have extensive resources to use in gathering evidence that the best efforts of a subcommittee of administrators could never equal. Courts obey recognized standards of due process, allow for the cross-examination of witnesses by both sides before a fact-finding jury and permit the representation of the accused by an experienced attorney as opposed to a proctor, dean or senior tutor.

By replacing a three- or four-member subcommittee with an investigator, the Ad Board risks making its fact-finding proceedings even less even-handed. The use of a single investigator gives immense influence to one person to determine and interpret the facts. Although students in cases where investigators are appointed will now be allowed the opportunity to address the Ad Board directly in their defense—an opportunity it inexplicably denies to students in cases where the facts are determined by subcommittee—the resulting process is far from equitable.

Unlike the subcommittee members, the investigator will not necessarily be a member of the Ad Board. Because he or she may present summaries of witnesses’ statements, the position represents one more filter between the original witnesses and the Ad Board members who will ultimately decide the facts of the case. Additionally, it is not clear to whom the investigator will be accountable, what level of investigative experience will be required to hold the position, nor what exact role he or she would play—that of an independent observer or of the Ad Board’s judge-advocate.

This summer, the Administrative Board of the Law School hired Law School Senior Reference Librarian Janet C. Katz to be a fact-finder for the case against four law students involved in the Massachusetts Hall sit-in. In her role, Katz not only reported the statements of Mass. Hall staff but also made more general statements about their experience and described the students’ behavior as “egregious.”

If the College system in practice comes to resemble that of the Law School, the fact-finder could easily become an unofficial prosecutor. However, unlike law school students, undergraduates before the Ad Board are denied access to effective counsel. If so much of the Ad Board’s decision is to rest on one investigator’s collection and interpretation of the facts, the accused student deserves equally effective representation.

We are deeply concerned that the new role of investigator could pose problems far more serious than the scheduling difficulties that have delayed the work of Ad Board subcommittees. The Ad Board has rarely been considered an effective fact-finding body, and entrusting this process to an individual investigator is unlikely to improve the situation. In its attempt to expedite the disciplinary process, the Ad Board seems to have taken a step backwards in guaranteeing students due process and fair judgment.