Before addressing the authors’ non-legal concerns with the single sanction, we would like to dispel some egregious misinformation: Jaeyoon Park and Ian Robertson’s recent op-ed “Honor is not above the law” makes incorrect assumptions about due process and the honor system. The authors have contended that the honor system as it currently functions “violates basic due process of law.” First, it is important to note that both the U.S. District Court for the Western District of Virginia and the U.S. Court of Appeals for the Fourth Circuit (an appellate court one step below the U.S. Supreme Court for federal cases arising in Maryland, Virginia, West Virginia, North Carolina and South Carolina), have already dismissed a direct challenge to the sufficiency of due process protections for students accused of an honor offense in the case Henson v. the Honor Committee of UVA. Now we address each of the authors’ arguments in turn.
1. The single sanction makes the definition of an honor offense unclear.
As trained support officers in Honor, the authors know better than anyone that the procedural separation of the application of the criteria of an honor offense from the imposition of a sanction renders the above contention illogical. First, the definitions of “Knowledge” and “Significance,” as set forth in the bylaws and as the authors have so faithfully recited at hearings, are clear. It is the variances in the panelists’ applications of the criteria of “Knowledge” and “Significance” with which the authors take issue. However, because jurors are prohibited from considering the sanction in the process of determining the guilt of the student, the application of the definitional components of an honor offense is unaffected by the single sanction. A student panel definitively determines whether a specific act under specific circumstances is considered an honor offense by applying the clear definitional criteria to the case in question and without considering the sanction. It is unclear how the existence of the single sanction renders the definition of an honor offense unclear.
Second, the criteria of “Knowledge” and “Significance” are intentionally cast as standards rather than rules. The existence of flexible standards, as opposed to categorical rules, allows members in both our system and the American justice system to properly apply text to various situations. As the Supreme Court has often emphasized, “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Different practices are acceptable in different settings; some classes across Grounds value collaboration on certain assignments, while others have more strict requirements. All of these requirements are either set forth explicitly in a syllabus or readily obtainable from the teaching staff. Finding a student not guilty of cheating on the criterion of “Significance” because he collaborated with classmates in a class that allowed for some collaboration is a proper application of that standard and should not be dismissed as “leniency.”
2. The unclear definition of an honor offense makes the honor system ineffective.
Taking a step back from the hyperbole of complete “ineffective[ness],” these points are better addressed in the recently published pieces by the Editorial Board, Yoder, Lyons and Bogue.
3. The honor system is ineffective in a way that violates due process.
Simply put, not all vagueness is unconstitutionally vague. If it were, our entire criminal justice and torts systems would be unconstitutional as well. The entirety of criminal law is dependent on a subjective determination of mens rea (“guilty mind”), which uses standards identical to our criterion of “Knowledge.” Much like in the honor system, a criminal act must be committed with some sort of mens rea (ignoring a small percentage of strict liability offenses), ranging from intent to negligence (what a reasonable person should have known to be a crime — this should sound very familiar.) Additionally, the vast majority of civil wrongs adjudicated by our torts system are also calibrated to the same reasonable person standard. Although no one is quite sure what a reasonable person is in the abstract, any vagueness arising from the application of this standard to a specific case is both identical to that of the honor system and definitively constitutional.
Curiously, the authors attempt to use the unconstitutional vagueness doctrine (which they seem to misunderstand) as a method of attacking the constitutionality of our single sanction system, when a very clear body of case law exists rejecting their main contention. Why cite cases referencing gang-related anti-loitering procedures in Chicago when we have cases dealing directly with the constitutionality of disciplinary procedures and even the University honor system itself? In this arena, the Supreme Court has stated in a previous case that due process is satisfied when “the student [is] given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” While this case dealt specifically with a 10-day suspension in Ohio public schools, these minimum requirements were also applied to university disciplinary proceedings in Dixon v. Ala. St. Bd. of Ed. This case was a foundational student disciplinary procedure case, outlining more specific requirements, including (1) a notice with a “statement of the specific charges and grounds which, if proven, would justify expulsion” and (2) a hearing for both sides to present their cases “in considerable detail,” but not requiring “a full-dress judicial hearing, with the right to cross-examine witnesses.”
Following Supreme Court precedent, the Fourth Circuit has explicitly held that the procedures of the University honor system do not violate due process, affirming that “the University’s Honor System provides the accused student with an impressive array of procedural protections.” In support of this holding, the court acknowledges the need for the flexibility seen in Univ. of Missouri v. Horowitz, as well as the fact that “a school is an academic institution, not a courtroom or administrative hearing room.” Thus, our system has been appropriately founded on the fundamental elements of due process required by the Fourteenth Amendment and Supreme Court case law, in addition to passing the Fourth Circuit’s scrutiny with ease.
Michelle Butler and Austin Sim are second-year Law students. Sim is also a fourth-year Medicine student. Sim has served on the Honor Committee since 2012, and Butler served from 2013-2014 and since 2015.
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