Walker ruling mixed bag for Midd

Author: Ben Salkowe

In a ruling from the Addison County Superior Court issued Tuesday, Nov. 8, the request of former Middlebury senior O'Neil Walker for a final injunction in the College's decision to suspend him last spring was denied. "Walker has not established a clear right to such extraordinary relief and thus a final injunction is not warranted," wrote Christina Reiss, Addison Superior Court Judge, in the ruling. The College suspended Walker indefinitely last spring after two campus judicial boards found him guilty of "behavior unbecoming of a Middlebury student" and "disrespect for persons and property," when he was accused of entering another student's room unauthorized.

Immediately following the College's decision to suspend him, Walker filed suit in Addison County Superior Court challenging the decision. Walker, who is black, initially charged racial discrimination by the College's judicial process. That charge was later dropped, leaving the question of whether the College's judicial processes had violated its own Handbook. While finding that the final Judicial Appeal Board (JAB) proceedings had not been so "extraordinary" as to grant a final injunction, last week's ruling was severely critical of the College's Community Judicial Board (CJB), which was the first of the two judicial boards to hear Walker's case. The CJB was found to have committed multiple procedural errors violating the College Handbook, and the ruling declared that "the CJB's failure to make findings of fact rendered its decision and sanction fundamentally unfair and arbitrary and capricious."

In addition, while determining that the JAB proceedings did not warrant a final injunction, the Court found "that the JAB's outcome letter [announcing its decision to Walker] is so vague in identifying the conduct for which Mr. Walker was found guilty that it violates the fundamental fairness guaranteed by the Handbook." The court left it to Walker and the College to demonstrate the damages that should be awarded for Walker's time and resources expended as a result of the College's breach.







Reaction to the decision



To the College's legal team, last week's ruling was a positive decision. "The finding was that basically Middlebury's student judicial processes in this case were found to have been fair and conformed with the Handbook procedures," Karen McAndrew, the College's attorney, told the Associated Press (AP) last week. "We're pleased to see that the court agreed that the procedures were fair and the outcome was legitimate."

Neither the College administrators nor their legal team offered comments addressing the Court's criticisms of the CJB.

Attorney Robert Weltchek, who represented Walker and whose son, Nolan Weltchek '05, is a close friend of Walker, expressed his hope that the College would seriously address the Judge's criticisms of the CJB's judicial process throughout the Walker hearings.

"[Walker] has to go on with his life, but for the College it should not just be swept under the rug as, 'We were right and he was wrong,'" said Weltchek. "In a sense the College lost too and they should not be announcing to the world that they have been vindicated."

In an all-campus e-mail sent last Thursday, President Ronald D. Liebowitz wrote, "As an educational institution, we seek to make our procedures fair, and where flaws are found in our processes, we take steps to address those issues. We will do so here and in the future."



O'Neil Walker's future



According to Weltchek, Walker will seek the damages that the ruling found he could be entitled to. Walker reportedly does not intend to pursue an appeal of the Superior Court's ruling. "[He] has to go on with his life and he wants to go to law school in the fall," said Weltchek. "It's more of a practical problem than a legal problem," Weltchek added.

Speaking to National Public Radio (NPR) this summer, Walker remarked, "I don't have my diploma, I don't have my degree. So right now, everything's just on hold and I'm waiting for this thing to be taken care of. It's taking a heavy toll on the family."

Weltchek believes Walker will follow through with the College's terms for readmission. His penalty for the intrusion that the JAB found him guilty of requires a "thorough evaluation from a certified therapist or counselor, which confirms that [he has] fully addressed the issues pertaining to the hearing," in addition to his indefinite suspension. Walker may reapply for admission to return in the Spring 2006 semester if he completes the required counseling.

Reapplying would not require Walker to use the same competitive admissions process as an entering or transferring student, and he is virtually assured of readmission, assuming he completes the terms of his suspension. "Dean Hanson testified that in her experience, 100 [percent] of the students who reapplied after their suspension were readmitted if they addressed their sanction," wrote Reiss.



College Judicial Boards face criticism



Neither Liebowitz's message, the College's subsequent press release or the national news media coverage of the decision mentioned the Court's severe criticisms of the CJB. According to the ruling issued last week, "The court concludes that the CJB committed a number of procedural errors that violated the Handbook."

The Court's first concern over the CJB hearings was the role of Dean of Student Affairs Ann Hanson. As Dean of Student Affairs, Hanson serves as the chair of the CJB, but in her role as Dean, Hanson also works with Lisa Boudah, associate dean of Student Affairs and director of Public Safety, who brought the charges against Walker. According to the decision, Hanson risked unknowingly obtaining information from Public Safety's investigation of the room intrusions that had not been made available to Walker. "Because Dean Hanson's involvement in the investigation of the room intrusions was not disclosed to Mr. Walker, he had no opportunity to challenge her participation on the CJB," the opinion states.

The Superior Court's criticism last week was not, however, the first time the dilemma of Hanson's role in the judicial board hearings had become an issue. In the Aug. 24, 1994 case Fellheimer v. Middlebury, the U.S. District Court for Vermont considered a plaintiff's claim "that because Dean Hanson served as both 'prosecutor' and 'judge' his proceeding was fundamentally unfair." In that case, however, Hanson's role was not found to have been in violation of the College's Handbook. Reiss, in her decision on the Walker case, was explicit that what was at issue was not Hanson's dual roles, but the risk that she may have unintentionally obtained influential information during the investigation which was not available to Walker for rebuttal during the CJB hearing.

The Court further criticized the CJB for violating the Handbook when it failed to take votes on the different room intrusions involved and whether members of the CJB thought Walker was guilty in each case. A number of room intrusions were at issue, and which incidents various CJB members associated with Walker was never resolved. According to the decision, the CJB "posed a substantial risk that O'Neil Walker would be punished for conduct for which he would have been found 'not guilty' had a vote of the CJB taken place."

Despite the opinion's finding that the CJB's procedural errors had rendered its decision "fundamentally unfair," because Walker had been granted an appeal to the JAB, the CJB's errors were only relevant to the trial to the extent that they had "tainted" the JAB hearing. The Court did not find any reason to believe that such a taint had occurred.

Walker's legal team had also charged that the JAB proceedings, at which Walker's case was last heard at the College after being appealed from the CJB, had been in violation of the H
andbook on several counts. The court rejected all but the last of Walker's charges - that the College's outcome letter was "unfairly vague and arbitrary." On that count the Court condemned the College for having issued Walker an outcome letter that only informed him he had been found guilty of "Conduct Unbecoming a Middlebury College Student and Disrespect of Persons and Property." The letter did not inform Walker on what basis the finding had been made and "did not even report the JAB's vote on the Harassment charge." According to the Court, "Nothing in the outcome letter could remotely be considered a factual finding."

As with the criticism of the Dean of Student Affairs' role, the Walker case was not the first time the College had faced legal troubles for failing to inform a student of the explicit basis for its determination of guilt. According to Reiss' decision, "The College previously has been put on notice that it should inform students of the conduct of which they have been found guilty." According to last week's ruling, the College repeated the same error cited in Fellheimer v. Middlebury.

"Even the College's own lawyers were confused regarding what had been found by the College's disciplinary boards," the Court said. "Had the contents of the Board's deliberations not been revealed, this information would not have been available from any source." On this condition the Court found that the JAB's outcome letter, like the CJB's procedural errors, "violates the fundamental fairness guaranteed by the Handbook," and Walker may therefore be entitled to damages.



Racial discrimination charges dropped



"There was no finding that racial bias or discrimination tainted the College's judicial processes. In fact, Mr. Walker had withdrawn those allegations during the Court hearing," wrote Liebowitz in his community e-mail.

The Walker case garnered national media attention over the past summer when Walker initially charged the College with racial discrimination. Everywhere the story took on a sharply racial definition. The Village Voice ran a May 31 story under the headline: "Busted for Blackness at Middlebury: How a Bronx senior with a sterling record got kicked out of a tony Vermont college." NPR ran a segment on the story July 19, in which its anchor, Ed Gordon, introduced the College as a "school that has a history of racial tension" and commented that "Now others are wondering aloud if [Walker's] is an extreme case of the old adage, 'They all look alike..'"

Online petitions and countless blog entries spread through cyberspace assailing the College's handling of the situation, and the prominent civil rights activist Billy Murphy joined Walker's legal team.

"From the College's point of view there simply wasn't evidence of that," McAndrew told the AP. "We thought there was a legitimate basis for bringing the disciplinary charges against Walker that was independent of race or racial bias."

Walker ultimately dropped his charge of racial discrimination, the media fervor died and the racial accusations from Murphy decreased in the news reports. According to Weltchek, "It became irrelevant and it's very difficult to prove [racial discrimination]. The racism charge became more of a distraction to proving the failures to follow protocols that were in [the College's] own handbook."

"If all students are treated this way then that's something the school really needs to take a look at," Weltchek added. "If [Walker] was the only one, then maybe his race was an issue."

Because the charge was withdrawn, the Court did not actually consider whether racial discrimination had been in evidence through the College's judicial proceedings.

"We will be working - in fact we are already working - to revise several of the procedures that the judge identified in the ruling. Within the context of the Human Relations Committee review, we will also be engaging any concerns people have about how issues of racial or ethnic identity factor into cases like this one," said Dean of the College Tim Spears.

While Liebowitz's e-mail was confident that racial bias or discrimination had not been a factor in the Walker case, he acknowledged that the incident had raised greater questions about the College's treatment of diversity.