Perspectives: An Ethical Exploration: Violations of the Law and Differential Treatment Between College Students and Non-Students

A focus on students is the hallmark of the student affairs profession. However, an ethical dilemma emerges when one considers if our treatment of students is inadvertently unfair to non-students. Do institutions of higher education inadvertently privilege the students they serve when those students violate the law? Is it fair that non-students are processed through the criminal justice system for the same offense treated as learning opportunities for students? Could the criminal justice system learn something from the developmental approaches often taken by colleges and universities?

These questions and others are explored by the authors in this examination of fairness and differential treatment in our society. First, we pose two case studies and a typology we hope will illustrate examples of fairness and differential treatment between student and non-student populations. Second, we discuss the ways these cases compare and contrast to adjudication practices outside of the university.  Finally, we pose questions that may prove helpful in illuminating this complex ethical issue. While there are no definitive solutions, discussion generated from this column could lead to increased interest in the topic, new directions for research, and hopefully a greater understanding of the complexities involved. We hope this column can be a catalyst for further exploration, discussion, and understanding regarding institutional practices and the choices we make as a society regarding how we treat alleged student and non-student offenders.

Case Studies

In order to examine the differential treatment between college students and non-students, hypothetical scenarios are described next. While an express purpose is to present a well thought out explanation of the potential consequences for the involved individuals (Non-student A and Student B), it is important to note there are other variables not discussed here that may affect the outcome. Indeed, it is more likely that the illustrated scenarios represent several points along a continuum of potential responses. In other words, while we present a completely developmental strategy on one hand and a punitive approach on the other, there are many options in between.

Illicit marijuana use was selected for these scenarios because this was a common offense at the institutions familiar to the authors. In order to better allow one to compare the two case studies, we assume all identity-based characteristics of the students are equal, other than their college enrollment status. Conversations with local police confirmed that similar instances were handled quite differently off campus than on campus. Confusing the issue further, some federal and state laws conflict regarding the illegality of marijuana use. Additionally, there is much evidence to suggest that age, race, and socioeconomic status all can, and often do, play a part in determining the nature and severity of consequences for legal infractions regardless of student status (Lynch, Patterson, & Childs, 2008; Neubauer & Fradella, 2011). The complexity suggests it is difficult to state whether such behavior is illegal all of the time in every place (“Federal Marijuana Law,” n.d.). Even so, the Controlled Substances Act (CSA) (21 U.S.C. § 811) suggests that illicit marijuana use is typically against the law in most regions of the United States. Rather than becoming bogged down in the specifics of this particular crime, we hope the reader will view illicit marijuana use as a vehicle for discussion. One might substitute theft or stalking for marijuana and convene a similar discussion.

Case study 1: Non-student A 

Non-student A is a high school graduate, but is not enrolled in college. Non-student A is smoking marijuana alone in his private residence when a neighbor or passer-by smells the odor and calls the police. As is typical from the authors’ experience, when police arrive they confirm the smell and decide to investigate.  Shortly thereafter Non-student A hears loud banging on the front door followed by, “Open up! This is the police!” shouted from outside. Non-student A delays complying with the request because he is attempting to hide the evidence of his marijuana use. He eventually allows the officer to enter and search the domicile. The officer smells the strong smell of marijuana and notices a pipe and a plastic bag of what appears to be marijuana sitting in a box on the kitchen counter.

Case study 2: Student B 

Student B is also a high school graduate but unlike Non-student A is enrolled in a four-year college. Student B lives in a residence hall on campus, in a room shared with one roommate. Student B is alone in his room on campus, smoking marijuana, when he hears a knock on the door, and his resident assistant says, “This is your RA, I need you to open the door.” Student B delays complying with the request because he is attempting to hide the evidence of his marijuana use.  He eventually allows the resident assistant to enter. Inside the room, the resident assistant notices the strong smell of marijuana, a pipe, and plastic bag of what appears to be marijuana sticking out of a messenger bag on the coffee table.

A Typology of Potential Outcomes

First, an examination of the potential outcomes of Student B’s situation is warranted. As a student at a four-year college, Student B could potentially be facing a wide variety of consequences for his actions. It has been the authors’ experience, through roles as student affairs professionals at eight different postsecondary institutions that university responses can vary dramatically. Three types of university responses to these cases will be described. The responses presented below are not meant to be a comprehensive list but should be seen as guideposts along a spectrum of potential responses.

Type 1: No campus police involvement 

In the first type of institution the situation is handled within the confines of the university, and campus police are typically not called to the residence in the first place. In a Type 1 institution, the resident assistant calls a professional staff member who comes to Student B’s residence. The professional staff member documents the situation, and the marijuana and paraphernalia may or may not be destroyed. The professional staff member then attempts to provide resources and support to Student B. In lieu of accountability measures, resources and guidance are directed to Student B in an attempt to increase the student’s knowledge of the potential consequences of drug use. Additionally, information is provided to promote the student’s welfare and success. In a Type 1 institution, there are no academic or judicial implications for Student B, and his criminal record is not affected.

Type 2: Campus-based educational adjudication

At type 2 institutions, the campus police are notified, confiscate the marijuana and pipe, and dispose of them. The campus police ask the resident assistant to document the situation, but no criminal arrest is made. Student B then progresses through the institution’s conduct system, which typically involves educational sanctions that seek to ensure the safety of the community and engage the student in a developmental process. In a Type 2 institution, an administrator may or may not record the incident and resolution in Student B’s university conduct record.The student’s criminal record is not affected.

Type 3: Criminal arrest 

Finally, at type 3 institutions, the campus police are notified, confiscate the marijuana and pipe, and process them as evidence of a crime. The campus police make a report of the situation and either issue Student B a summons or arrest him or her. The resident assistant also documents the situation and directs it through the student conduct process. In a type 3 institution, Student B’s criminal record is almost certainly affected. This incident may also be recorded in the university conduct record, depending on the student conduct response.

Now that the potential responses to Student B’s situation have been presented, one may take a closer look at what will most likely happen to Non-student A. Non-student A may face a range of consequences including being arrested and processed through the criminal justice system.

Discussion and Conclusion

Having described the potential consequences for marijuana offenses facing both Non-student A and Student B, the focus turns to the potential ethical dilemma created by this set of responses. The authors believe that institutions rooted in developmental practice are important for not only the development of individual students but also U.S. culture and society. When conduct policies designed to encourage better decision-making are successful it is likely that both the individual and society benefit. Another perspective is to consider whether such a difference in procedure is fair to our students and non-student counterparts.  Merriam-Webster’s dictionary defines a double standard as “a set of principles that applies differently and usually more rigorously to one group of people or circumstances than to another” (“Double Standard”, n.d.).  With his in mind one may question whether a double standard is created when, intentionally or not, students enjoy varying degrees of greater support and differential treatment than their non-student counterparts.

Questioning the differential treatment of students and non-students is not meant as an indictment of developmental student conduct practices. To the contrary, the authors completely support the concept of developmental conduct processes within the university but cannot ignore that this attitude is less prominent outside the university. In short, if college is about preparing students for a real world, where developmental adjudication strategies are in short supply (Natarajan, 2010), is it ethical to prime students in a culture that is counter to the real world?

Student affairs professionals seeking to develop students may be inclined to suggest the university’s developmental approach to student accountability is superior to that of society at large. While the authors agree with such an assertion, it is beside the point for this discussion. The question is not whether judicial systems outside of the university are overly prescriptive and intolerant. Neither is the question whether the university system is fairer or more just when viewed in a vacuum. In general the authors feel the real question is whether both systems, existing simultaneously, present an ethical conundrum for state and university officials.

Is such a model ethical and fair? Some would ask why college students, who already represent a privileged population, should get a second chance when other community members (non-student) their age might not. Furthermore, is it possible the university purpose and funding regarding behavioral response compared to that of U.S. society generates a system which is unfair to those inside and outside of the academy? With regards to this last question, the authors invite discussion on the ethics surrounding beginning a college student’s adult life with added protection of a developmental process only to release the student into a world where such luxuries are less available. Additionally, we raise the question about absence of a developmental process for non-students.

One natural suggestion of student affairs practitioners is that colleges might collaborate with federal, state and local municipalities in order to bring societal solutions external to the university more in line with practices within the academy. Indeed, universities, particularly flagship and land grant institutions, do have an expressed responsibility to contribute to the community outside of their own gates, but practitioners must be careful not to overstep in such roles. While the authors believe such cooperation to be integral to the expressed concerns highlighted in this piece, it is potentially problematic to assume that the local citizens (more specifically voters) in the community near an institution support developmental sanctions to the same extent of student affairs practitioners. There is evidence to suggest this distrust of development within the rehabilitation movement in the American prison system (Natarajan, 2010). Perhaps better outreach programs from universities could help to mitigate this obstacle.

Harry Dammer, in an edited volume by Mangai Natarajan (2010), described the sentiment of the American populous regarding prisons. In short, prisons in the early 20th century were cruel institutions reminiscent of dungeons. These were replaced by a system that purportedly sought to educate and rehabilitate through a number of psychological, physical, and career-based applications. However, by the 1970s the American public clamored for a more punitive model, and politicians and policy makers complied. While public opinion may or may not have changed since the 1970s, “the call for increasing severity of sentences has been driven by ‘penal populism’, a term used to describe crime policies that are formed by politicians in their attempt to appease the public and their call for punitiveness” (Naterajan, 2010, p. 93).  Pratt (2007) claimed this phenomenon is still true. Pratt also suggested the control and drive of politicians to keep the system punitive is real regardless of whether they understand or have adequately questioned the opinions of their constituents.

In contrast, universities typically seek to create teachable moments out of student conduct violations. Generally, only the most egregious acts result in suspension or expulsion, which are the greatest sanctions available to an institution. This seems trite compared to the possibility of incarceration. Certainly, students can suffer heavier legal punishments, but in the authors’ experience, many times (as in types 1, 2 described above and the spectrum in between) the university is able to choose whether to report the crime or handle it internally. Here it is important to remember there are a spectrum of responses. Based on experience, some universities are heavily dependent on a community standard approach, which often avoids legal action while, on the opposite end to the continuum, others use police almost exclusively to approach behavioral response. We find that most institutions fall somewhere in between. In most cases some form of probation or educational sanction supported by a number of student affairs practitioners and/or faculty is devised to help the student learn from their mistakes and succeed in the long run. On the other hand the notion of rehabilitation often seems like the punch line of a bad joke in the criminal justice system. At best, most people describe criminal sentences as “repaying one’s debt to society.”

Comparing campus judicial proceedings with criminal adjudication we can see a difference in ideology. The university seeks to invest in the individual, and conversely, society seeks to punish the guilty party. Based on conversations with many experienced student conduct administrators within different states and institution types, we found some agreement that if local, state, and federal governments had the resources to provide services similar to those offered in the universities to convicted criminals that such a system could be very good for society. Conduct administrators also discussed with us that such a system is difficult to attain. The modern American democracy, a servant of the American voter and taxpayer, would require immense resources to support this type of system. Not only would many more hours of work be required becoming costly, but the American public would have to support the perspective that the criminal justice system should be about rehabilitation as opposed to punishment. Given the prevailing concept of penal populism (Natarajan, 2010), a shift to a developmental approach seems unlikely.

Scholars and researchers in the area of criminal justice agree that the courts, police, and prisons are overtaxed (Goldkamp & Vîlcicã, 2009; Lurigio & Snowden, 2009; Scott, 2009; Worden & Davies, 2009). Furthermore, at every university familiar to the authors, this greatly overloaded criminal justice system is often happy to allow universities to take care of their own offenders for two reasons. First, in a system where there are impossibly long courtroom dockets, too few police on the streets, and too many convicted individuals in the prison system, the criminal justice system seems thankful part of the load to be taken by other organizations. Second, we can see where some might argue if society cannot offer the same treatment to everyone, at least each person who can be rehabilitated or developed through university conduct processes is a victory. The combined effect is that a system is created where the academy is allowed to sanction along completely different guidelines than the criminal justice system.

Here the authors will briefly describe some thoughts in the direction of potential solutions, which we hope will lead discussion towards greater problem-solving efforts. Specific attention is needed to both research and outreach. First, studies which examine the effects of university conduct procedures on students after college may allow student affairs practitioners to better acknowledge whether there is merit to the concerns regarding transition to life after college.  Further inquiry into transfer of the desired outcomes of the development process may provide greater support for contemporary strategies or prompt reform. Second, outreach to municipal legal and penal systems has the potential for two-fold success. On one hand the developmental approach used in colleges and universities might better help prevent and/or lessen crime while also helping to rehabilitate offenders. On the other hand, face-to-face interactions with crime outside academe could establish new ways of thinking in university conduct processes.

The ethical dilemma is with the existence of two environments that are separate yet operating side by side. The first favors development along a continuum exemplified by university conduct processes varying greatly in application. The second seems more focused on punishment as a result of perceived public opinion. The long-term solution to relieving the tension in this dilemma would be to bring each of the systems more in line with each other to remove the possibility of the double standard expressed above. Ideally a change in governmental policy to come more in line with developmental methods seems more appropriate. The optimism of the authors leads us believe great strides can be made to this end, but our shared pessimism has us considering how changing complex and politically charged issues will be a long and arduous process. The authors have suggested further research and outreach is needed to accomplish real strides towards bringing university and societal systems in-line. With this in mind we suggest that a short-term analysis also take place. While the authors fully support greater efforts at research and practice in the former long-term solution, we believe a short-term solution such as collaborations between student affairs conduct officers and local judicial servants resulting in an increased communication would be helpful in bringing awareness to this issue..

Discussion Questions

• Regarding a developmental approach versus a more punitive style, which system is more appropriate given the realities of our world?
• Can the student conduct and criminal systems work together?
• Can either community (the university or society) trade their system for or merge their system with the other?
• There are compelling reasons why the academy handles conduct in the manners it chooses, but is this ethical in light of the greater expectations of the municipality. If not, what should be done?
• Where does your institution fall on the spectrum of typology presented?
• What are the implications of where your institution is on the spectrum?
• Do contemporary practices in student conduct on your campus appropriately correct behavior before students exit the institution, or do they simply provide a false expectation of leniency to privileged students?  What evidence do you have to support your claim(s)?
• How could student affairs professionals reconcile any differences that may exist between  personal philosophies regarding conduct and that of your university regarding this type of situation?

 

References 

Double Standard. (n.d.). In Merriam-Webster online. Retrieved from http://www.merriam-webster.com/dictionary/double+standard?show=0&t=13192…

Federal marijuana law. (n.d.). [Americans for Safe Access web site]. Retrieved from http://www.safeaccessnow. org/article.php?id=2638

Goldkamp, J. S., & Vîlcicã., E. R. (2009). Judicial discretion and the unfinished agenda of American bail reform: Lessons from Philadelphia’s evidence-based judicial strategy. In A. Sarat (Ed.), Special issue: New perspectives on crime and criminal justice (pp. 115-157). [Special issue].Studies in Law, Politics and Society, 47.

Lurigio, A. J., & Snowden, J. (2009). Putting therapeutic jurisprudence into practice: The growth, operations, and effectiveness of mental health court. Justice System Journal, 30, 196.

Lynch, M. J., Patterson, E. B., & Childs, K. K. (Eds.). (2008). Racial divide: Racial and ethnic bias in the criminal justice system. Monsey, NY: Criminal Justice Press.

Natarajan, M (Ed.). (2010). International Crime and Justice. New York, NY: Cambridge University Press.

Neubauer, D.W. &, Fradella, H.F. (2011). America’s courts and the criminal justice system.

Belmont, CA: Wadsworth.

Pratt, J. (2007. Penal populism. New York, NY: Routeledge

Scott, M. S. (2009), Progress in American policing? Reviewing the national reviews. Law & Social Inquiry, 34, 169–185.

Worden, A. P., & Davies, A. L. B. (2009). Protecting due process in a punitive era: Analysis of changes in providing counsel to the poor. Special issue: New perspectives on crime and criminal justice (pp. 71–113). [Special issue]. Studies in Law, Politics, and Society, 47.

About the Authors

Nicholas A. Clegorne is an Assistant Director in the Louisiana State University (LSU) Department of Residential Life and a Ph.D. Candidate in Educational Leadership Research and Counseling (Higher Education Administration) at LSU.

Jonathon Hyde is the Associate Director for Residence Education and interim Director of the Center for Academic Success at LSU.

Rony Die is a Residence Life Coordinator in the Department of Residential Life at LSU.

Please send inquiries to Nicholas A. Clegorne  [email protected] 

The opinions expressed by Developments author(s) are not necessarily those of the Developments editorial board or those of ACPA members, Governing Board, Leadership, or International Office Staff.