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Law firm finds problems with WSU’s student conduct process, but no racial bias

UPDATED: Thu., March 2, 2017, 9:32 a.m.

Robert Barber (92) poses for a photo after practice before the the 2016 Holiday Bowl on Sunday, Dec. 25, 2016, at San Diego Mesa College in San Diego, Calif. (Tyler Tjomsland / The Spokesman-Review)
Robert Barber (92) poses for a photo after practice before the the 2016 Holiday Bowl on Sunday, Dec. 25, 2016, at San Diego Mesa College in San Diego, Calif. (Tyler Tjomsland / The Spokesman-Review)

Washington State University’s student conduct process may be unfair to fraternity members and football players, but “there remains no evidence of racial or ethnic bias” in the conduct board’s disciplinary decisions, an independent review by a Coeur d’Alene law firm has found.

WSU commissioned the review after four Cougar football players – all Pacific Islanders – were accused of violent crimes last year. The proceedings resulted in expulsions and suspensions, prompting outcry from minority groups, students, athletes, alumni and a state senator.

The attorneys who conducted the review, Marc Lyons and Megan O’Dowd, interviewed dozens of people familiar with the student conduct process and summarized their concerns in a report, which the university published on Wednesday. Among their observations:

  • “There were several reports that the process was overly punitive and failed to afford students adequate due process.”
  • “It was reported that there is bias, or a perception of bias, in the student conduct process particularly as applied to male student athletes and members of the Greek system.”
  • “Some witnesses also believed that questions of male respondents were more aggressive and harsh, and that such questioning was potentially unfair when the respondent was a non-native English speaker coming from a different culture (such as the Pacific Islander respondents).”
  • “Some witnesses characterized the questioning of respondents as sometimes ‘leading’ … and sometimes too casual in situations where a serious sanction, such as an expulsion, was a real possibility.”
  • “There were also reports that a Board Chair made negative statements about the football team and its apparent tolerance for violence against other males.”

Lyons and O’Dowd also made the following recommendations:

  • Expand the conduct board from five to seven members to mitigate the influence of any single member.
  • Make an attorney available during all hearings and deliberations.
  • Train board members on multiculturalism and to avoid conflicts of interest.
  • Don’t let members serve on multiple cases involving the same student.
  • Require that all sanctioning decisions be unanimous.
  • Send notices of misconduct to students’ athletic coaches or Greek advisers.
  • Appoint trained advisers to help students navigate the conduct process.

“Our students clearly need to know more about the student conduct process and their rights and responsibilities,” said Mary Jo Gonzalez, WSU’s vice president for student affairs. “We need to be a little more clear with our students what role each of these offices plays in that process.”

Gonzalez is part of a 15-member task force working to implement the recommendations.

The university also is under pressure to expand the student conduct process after a state appeals court in December found that WSU inappropriately expelled a 40-year-old doctoral student, Abdullatif Arishi, who’d been accused of raping a 15-year-old girl.

“Mr. Arishi attended the hearing with the lawyer representing him in his pending criminal case, but pursuant to student conduct rules, the lawyer could only act as a private advisor and could not address witnesses or the conduct board,” the appeals court wrote in its decision.

Pullman attorney Steve Martonick, who has counseled students in about two dozen conduct cases, called Lyons and O’Dowd’s recommendations “sensible.” He wants assurances, however, that attorneys will be allowed to participate in conduct hearings, address the board and cross-examine witnesses.

Sen. Michael Baumgartner, R-Spokane, fiercely criticized WSU’s conduct process and called for expelled football player Robert Barber’s reinstatement last fall. He declined to comment on Wednesday, saying he hadn’t yet seen the report by Lyons and O’Dowd.

The attorneys said it would be “inappropriate” to comment beyond what’s included in their report.

WSU athletic director Bill Moos said Wednesday that his department can still use discretion when deciding how conduct and criminal proceedings will affect athletes’ time on the field. Other schools have given that authority to higher-up administrators.

The athletics department does, however, have written guidelines for dealing with athletes’ criminal behavior.

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