Spirit of the Law vs. Letter of the Law

Members of the NU corps of cadets, administration discuss equity in application of cadet rules and regulations

Editor's Note: This is part one of a two-part series examining the room search policy, due process, and appellate authority sections of the Norwich University Corps of Cadets Rules and Regulations

By Amanda Tracy
Norwich Guidon Managing Editor

In the most current copy of the Norwich University Corps of Cadets Rules and Regulations, "the spirit intended will be sought" for "any interpretation of (the) regulations," according to the University President Richard Schneider. His statement appears as the fourth point in a Letter of Promulgation on the first page, dated August 2000.

Some cadets, however, don't believe that is happening.

Susan, a cadet who requested anonymity, feels specifically that a cadet's right to due process, as outlined in Ch. 7, Sec. 10 of the cadet Rules and Regulations is protected, but, she said, "it depends on who you are."

Col. Mike McKean, commandant of cadets and vice president for student affairs, disagrees. "The policy is pretty simple," he said. "It's right there in writing."

McKean said that a cadet is given a multi-part "disciplinary charge form," detailing the charges. On the form, the cadet may plead guilty, not guilty, or no contest. They must initial this option.

The charges are then referred to the proper convening authority, or the administrator who has the proper scope of authority and responsibility to hear the case. At each step, McKean said, the student must initial and sign the form, acknowledging that they understand the process to that point.

When the convening authority, or the person hearing the case, decides guilt or innocence and the appropriate administrative sanctions, the cadet then has 48 hours to appeal the decision.

McKean also provided a form for this step of the procedure. Another multi-part form, the "Disciplinary Case Disposition" form, details the findings of "not guilty," "guilty of all charges," or "other." It details the punishment, space for description, and a section for the appeal notification. If a cadet chooses to appeal, he or she initials the form, and has 48 hours to present the appeal to the appellate authority, or administrator in charge of hearing the appeal.

"This is all read to them, and they initial it," McKean said. "If a student refuses to say 'guilty,' 'not guilty,' or 'no contest,' the assistant commandants will always sign not guilty, and (make a note) that the student refused to sign. He is assumed not guilty unless the evidence proves otherwise."

McKean said that in every disciplinary case, the students initial these forms. "They've read it, they've heard it verbally, and they've initialed it."

He doesn't understand why students would say that they don't understand the process. "So for anybody to report to you in your findings that they don't understand the process or they didn't have a process, there's a piece of paper that shows his or her initials that said they understood it clearly."

Susan said that she understands how a case works through the system but doesn't like the investigative process. She said that a disclaimer before the steps in the due process section of the Rules and Regulations doesn't "uphold the spirit of the law."

According to chapter seven of the Norwich University Corps of Cadets Rules and Regulations, "Due process is the term applied to the procedures that must be followed to bring a violator of administrative regulations or civil law to justice.

"While all infractions and the ensuing corrective measures of the Regulations of the university are purely administrative in nature (rather than judicial), due process will nevertheless be followed in all cases involving board action at Norwich," the chapter states. "The steps in due process are as follows, and do not necessarily have to be followed in sequential order…."

The following steps include:

1. Notifying the cadet of the charges against him or her "as soon as possible." The first step also includes language about a cadet's right to remain silent, without presumption of guilt.
2. A step prohibiting the convening and appellate authorities from any participation in a disciplinary investigation to ensure objectivity.
3. Providing the cadet with all of the evidence against him or her, allowing a cadet to assist with the cadet's defense and presentation before the convening board, and the provision of witnesses. This step prohibits any personal tape recorders at the convening board, with the exception of the recorder provided by the university.
4. Allowing the cadet accused 48 hours to comprise a defense
5. Provides the accused cadet the right to be present at all open sessions regarding the case.
6. Allows the cadet the right to challenge any administrator who is on the board of convening authority, with the exception of the president of the board.
7. Allows the cadet the right to present witnesses on his or her behalf, and any mitigating or extenuating circumstances relevant to the case.
8. The right to appeal.

Susan said that by providing a disclaimer, which allows the investigative process to be conducted out of order, the Rules and Regulations can be twisted so that the "spirit of the law" is not upheld.

"They can conduct months of investigation before they even tell you about it," Susan said. She accuses the commandant's staff of choosing when to use this disclaimer "depending on whether or not they like you. They have the golden children, and they have the blacklist."

Susan explained that the blacklist is different for each member of the commandant's staff. "I don't think it's written down anywhere, obviously," Susan said, who said that she "sometimes" feels as though she is not liked by one of the members of the commandant's staff because the commandant is constantly "intervening in my life," for non-judicial reasons.

"The one part of due process that I'm really familiar with is that [the members of the commandant's office] have to give you, as soon as the investigation has started, prompt notification that it's going on," Susan explained, who has received administrative punishment for a Rules and Regulations infraction this year.

"I know for a fact that the investigation conducted against me started two weeks before spring break, but we weren't notified until two weeks after spring break," she said.

Susan also said that she wasn't shown any of the evidence, including the statements from the person or people bringing the accusations against her, either.

"I wasn't shown any evidence. I wasn't shown any statements, any reports," she said, adding that the statements filed against her were also never read to her, with the identities of the people filing them removed.

"I support the Rules and Regs until they are changed," Schneider said, referring to any criticism of the cadet Rules and Regulations. "I'm always open to improvement in the Rules and Regs, but not at the time of crisis."

He said that while any students who are unhappy with the Rules and Regulations at Norwich are "welcome" to suggest changes, he would not like to see the rules become "too detailed." Such a situation, Schneider said, can lead to an environment that is too restrictive.

"I think the rules should be shorter, and briefer, not longer," Schneider explained. "We don't want to make this so 'by the numbers' that common sense cannot prevail. I don't ever want to have a system at our school that does not make sense."

With regard to "fairness," Schneider said, "you will always get students who feel like they were treated fairly or not. Some, no matter what you do to them, don't feel like they were treated fairly. As long as they were caught, they don't feel like they were treated fairly. Fair is in the eye of the beholder."

Schneider said that the biggest complaint he's heard about the fairness of the system was not toward the commandant's staff, but toward the cadets about not applying the administrative punishment system equitably. He said he's received complaints from cadets who claim that those reporting violations would report selectively.

"They would say, 'they didn't their friend, they just stuck me,'" Schneider said. "That really is not right. Leaders need to be fair."

Often, Schneider said, "unfairness" is built into the system by "those in authority not exercising their responsibilities even-handedly."

McKean said that he would like to hear from students if they aren't confident that their rights are protected. "If they think that, then they need to tell me," McKean said.

"I'm going to re-write the Rules and Regulations this summer, so if they feel there's an injustice, all they need to do is come forward," McKean said, suggesting that cadets use their chain of command in addition to speaking with him personally.

"My objective, in the long term, is to make sure the punishments are genuinely equitable," Schneider said. "No man can devise a system that is error-free; you just strive to be as fair as you can."

"As the appellate (authority) it's important that I go through with great detail, that I study the case. Step one is to make sure that the accused's rights have not been violated in the process," McKean said. "I've had a couple of incidents where I've had to go back and bring in the investigating officers to reassure my mind that the rights weren't violated."

John, another cadet, who also requested that his real name not be used, also said that the application of the Corps of Cadet Rules and Regulations was ambiguous.

He said that in his case, the application of the "spirit" of the Rules and Regulations was followed, but that the "letter," or the actual rule, was not.

"The absolute letter? I would say no. The spirit? Yes," John said.

John, an upper-class cadet on Close Military Confinement for a Rules and Regulations violation, said, "I was never presented necessarily with all the evidence before me until my board; however, I was informed on the specific incidents I was under investigation for, and what my charges were based on, but I feel like my rights were protected."

John said that "while I didn't have the statements that were written against me, or necessarily have all the evidence that was gathered against me, I did know exactly what I was under investigation for."

John, who pleaded guilty to his accusations, said that he was given a week, more than the minimum 48 hours allotted him by the Rules and Regulations, to comprise his defense.

"That's when I handed over my presentation, and the statements against me were then read to me," John said, adding that his interaction throughout the investigative process with the commandant's staff member conducting the investigation was confusing. "It was slightly misleading."

"I was investigated for three instances of doing something wrong, and I was told that one of them would be the main focus of the investigation," John said. "When I got to my summary session, the focus was elsewhere."

What was emphasized in his investigation, according to John, "was not necessarily emphasized in (his) summary session."

John hesitated to say that this put him at a disadvantage, because he had "prepared to respond to all incidents," he said that he was "simply more prepared to deal with the one that I thought was the focus of my investigation."

Schneider said that he would be disturbed to hear that students are not confident in the disciplinary system, or those administering it.

"I'd be sorry to hear that they feel this way, but I'd like to know on what basis they think that way." Schneider said, explaining that the members of the commandant's staff have been commissioned officers for a number of years, and he has "every confidence" that the experience has trained them for this aspect of their job.

"It is expected of an officer to know how to administer punishment," Schneider said. "Every case is different, and there are standards that we try to stick to. I trust our officers to make good judgments about when people deserve a break and when they don't deserve a break."

Back to Guidon index