An Examination of Precedent in the Current Honor Code, and How to Restore It

In the Spring of 2015 the Haverford English Department offered a class entitled “Literature of Law.” One of my research projects for the course was an attempt to further understand the “Legal System” that governs our Honor Code trial proceedings, specifically analyzing the use of precedent in trial decisions. This is the first of a two part piece where I make the claim that the Haverford Honor Code has inconsistent references to the role of precedent due to the Code’s historical roots. This inconsistency then creates an unfair decision making process. The second iteration will be in the style of an annotated Plenary Resolution, attempting to legitimize the formal reintroduction of precedent into Honor Council Trial Proceedings.

Haverford College’s Honor Code opens with the following statement:“As Haverford students, we seek an environment in which members of a diverse community can live together, interact, and learn from one another in ways that protect both personal freedom and community standards” (Honor Code). This first line serves as a succinct foundation—a template— for the ideal that Haverford is committed to pursuing. This preamble does not claim a standard for maintaining an ‘environment’ that already exists, nor does it suggest that this hypothetical environment will be successfully implemented, but references a process of “seeking.” This construction of pursuit and discovery towards a distinctive community, as Haverford students “seek” rather than create or implement, highlights that the very roots of the Honor Code are perhaps founded in an ideal that can never be truly attained. All that Haverford students can continue to do is seek this outcome, a commitment to pursue a utopian community that may perpetually remain an arms-length away.

However, this examination of the first sentence of the Code is not a critique of its mission.  Rather, understanding that the community’s codified goals in the Honor Code are ideal, how can the student body now move itself in the right direction? Haverford’s response remains grounded in its Honor Council trial system. Except that nestled within the jargon of the Honor Council trial structure and its jurisprudence, the trial system demands an equally idealistic lens of Haverford’s Honor Council jurors. While idealism is undoubtedly a necessary goal when drafting the pinnacle of what the community wants to reach, it is an unacceptable model when deciding how to restore the community. This idealistic lens manifests most clearly in the dismissal of precedent in the current system, as the fundamental legal values of referring to prior cases as an equalizer  have been replaced by a language of emotion, a syntax of emotive displays.

The Honor Code is not foreign to precedent in its current iteration– discussed multiple times throughout its accompanying documents–but expounded  in a multitude of ways. The first mention of precedent appears packaged in one sentence in Article VI Section B(II) of the Student Constitution: “While precedent may be used as a guide in handling concerns, each case is still to be considered on its own merits.” The Constitution is very explicit in its critique of precedent, as prior cases’ resolutions are not considered prospective solutions to future trials, but are reduced to the role of a “guide.” The value of precedent is further diminished because not only is it considered a guide instead of an answer, but also the decision to use precedent in trials is introduced with “may be used” instead of an explicit expectation that precedent consistently be used as a metric for understanding and evaluating current cases. The acknowledgment of precedent is introduced under the subheading  “Consideration of Precedent,” but dissection of the writing demonstrates that it’s a consideration only when the juror decides its applicability. True commitment to consideration manifests in the second clause of the sentence, where the individuality of every case is emphasized, or “considered on its own merits.” Thus, the introduction of precedent in Honor Council trial proceedings places it in a backseat to the individuality, or uniqueness, of every case that Honor Council mentions. This commitment to understanding personal circumstance is further emblematic as precedent is enumerated under the section “Responsibilities to the Individual.” According to the Code, the jury is pulled by their “Responsibility to the Individual” currently under trial to neglect or negate precedent, rather than attempt to standardize a system of integration back into the community.

However, the first description of precedent is not the only instance where the Judiciary Powers of the Students’ Constitution comment on its implementation. The following section “Responsibilities within Honor Council” in its first subheading (I) “Interpretation” implicitly reintroduces precedent: “It is Honor Council’s responsibility to handle each case as a unique situation, yet keep in mind that it is also one of a number of similar occurrences.” In this subsequent reference to precedent, the writing construction is literally a reversed form of what was used in the previous section. The particularities or “unique[ness]” of each case is detailed first, and then refuted in the second clause, by ensuring that the council recognizes that the case is part of a much longer narrative of Honor Council occurrences. However, there is still a distinct hesitancy in how precedent should be scrutinized by the jury, as Honor Council does not require the jurors to classify and organize this trial amongst prior cases in a formal manner, but serves as more of an afterthought, to simply “keep in mind” the existence of prior violations. Thus there are two responsibilities pulling jurors in seemingly opposite directions: there is a commitment to the individual that necessitates each case being treated as a unique instance, while simultaneously a compelling claim made on responsibility to Honor Council itself to understand that these cases do belong in a longer commentary on violations.

These complications do not end with placing jurors in a dilemma of choosing whether their responsibility should serve the integrity of the community or the individual, but continue to develop inconsistencies in other sections of the Students’ Constitution. In Article VII part 2 section C “Role of the jury in a trial” precedent is examined again: “It is encouraged that jury members read past abstracts to review precedence in certain cases.” It is here for the first time that the review of precedent is portrayed in a positive light, as the review of prior cases has shifted from being a passive afterthought, or refuted in the following sentence, to an active recommendation. The use of precedent is not introduced with a “keep in mind” or “may be used” conditional, but “encouragement” from the Constitution. Except even in instances of positivity, the Constitution still limits the scope of its recommendation by adding at the end of the sentence, “in certain cases.” Through the stream of logic regarding precedent in Honor Council trials, jurors are encouraged to know about previous cases that dealt with similar issues, but should only use it as a guide, sometimes, or keep in mind that the current violation follows a similar occurrence. This continued confounding of precedent’s applicability in Honor Council trials renders precedent as a tool that can be selectively used, which ultimately defeats its purpose as a remedy against unequal treatment.

This selective use of precedent was not always the system that the Code demanded. One of the earliest Honor Codes that included a social component, implicitly comments on the necessity of creating a standardized system in 1953, “because shades of opinion differ widely from group to group, individual judgments cannot serve practically as a guide for conduct. It is necessary, therefore, to establish rules guiding conduct in some specific situations.” This system of regulation, that might not be a formal manifestation of precedent, eliminated inconsistent resolution outcomes by recognizing that individual reasoning on what qualified as an infraction cannot be sustainable due to the volume of opinions. The importance of creating a transparent body of what qualified as an infraction was another priority, as, “each Council defined for itself and published to the community its interpretation of the ‘any act’ clause.”[1] While this system is not a direct parallel to precedent, as each subsequent Council can develop its own criteria for violations, precedent was a foundation of the Code following this model into the 1960s: “Although Council did not feel itself bound by precedent, nevertheless there was a ‘Big Black Book of Precedent’ to which it referred when considering the disposition of a case.” Precedent may still not have been a binding philosophy, but it was not sidelined to consideration in cases of convenience. Instead it was a dialogue with current Councils referring to prior decisions.

However, systemizing trial proceedings still came at a cost to the college, as the creation of this system “depends upon and encourages awareness of the individual’s responsibility to the rest of the community.” Thus, the mission of the trial proceedings were not based on ameliorating the relationship between the individual and the college, but rather recognizing that the crux of the Code was preserving the integrity of the community over the reintegration of the individual. It is here where exclusively taking into account precedent, or even a published set of rules released by the Council, disregards the importance of caring for the confronted party on a personal level. This care for repair for the community and the individual is not unique to the preservation of Haverford, but an overriding commitment in other reconciliatory bodies. At the end of an Honor Council trial, one fact remains clear except in the most extreme cases: the individual is still a member of the community, and will continue to be.

The current format of the Honor Code attempts to solve the problem of trials attempting to restore trust only for the community. However its current method of accounting for individuality by ignoring similar cases develops a culture of assessing emotion, rather than pursuing a truly equitable system of restoration. Honor Council’s decision to disregard precedent is fundamental in its mission of pursuing individuality in every case. This model of individuality appears sustainable due to the circumstantial portion of the trial, which begins after the “jury determined that a violation of the Honor Code occurred,” and with the explicit purpose of “having the confronted party…explain the circumstances surrounding their violation…[and] focus[ing] on the ‘why’.” It is here where binding precedent and systematic equality is replaced with a judgment based on narrative. The system asks for an ideal where every single confronted party is to be evaluated as an individual separated from the violation, objectively. This portion of the trial is dedicated to the anecdotal renditions of students who may now attempt to contextualize their actions under the mask of stress, sickness, or prior visits with counseling services. It is here where the abstracts humanize the moment, writing details about how the student was having a “stress-filled midterm week” (Great Expectations Abstract) or “had to deal with some personal matters” (Lion King Abstract) or “the stresses of finals week”(Friends Abstract).

Undoubtedly, addressing these issues are compelling parts of how to reintegrate the individual into the community, but resolutions that deal with the violation itself – the acts of plagiarism or cheating – should not be influenced by these circumstantial factors. The community still cares about repair for the larger student body, and for the student, but that repair cannot manifest if it is lightened or harshened based on the performance of the circumstantial display. Thus Honor Council has shifted from two extremes. Previously an overriding commitment of responsibility to the community  which developed a culture of precedent and standardization, but lacked the foundations of incorporation back into the community following the violation  moved completely to the other end of the spectrum, where resolutions are not codified by prior decisions and reasoning, but emotionally impacted, a new vocabulary of story-telling.

Ultimately, Haverford should return to a principle of precedent, and open a new chapter in that black book that was repeatedly referenced in the 50s and 60s. Except that does not imply an elimination of the circumstantial portion of the trial. In order to facilitate true reparation, what sparked the decision of the student is relevant to reintegration and reconciliation. Rather, it is a fusion of the two, acknowledging that precedent brings fairness, but circumstances bring the tools needed for integration that will create a stronger, necessary improvement to the Honor Council trial process. It is possible to morph the positives of both of these systems together, developing a system of precedent following the violations, but subsequently listening to a circumstantial portion to determine what the individual needs.

 

“Appendix II An Historical Perspective On The Honor Code.” Honor Council. N.p., 12

“Article VI. Judicial Powers.” Honor Council. N.p., n.d.

“Article VII Section 2. Universal Trial Procedures.” Honor Council. N.p., n.d.

“Friends: An Honor Council Academic Trial.” Friends: An Honor Council Academic Trial (n.d.)

“Great Expectations: An Honor Council Academic Trial.” (n.d.)

“The Haverford College Honor Code.” Honor Council. N.p., n.d.

“Lion King: An Honor Council Academic Trial.” (n.d.)

Rosenthal, Zach. “Trial Flow Chart.” Honor Council. N.p., n.d.

http://honorcouncil.haverford.edu/the-code/

[1] “History of the Code” The any act clause reads as follows“Any act of commission or omission, which, if it became public, would damage the reputation of the student, the woman guest, or the College shall be deemed a violation of the Honor System. Whether the act did or did not become public shall be considered immaterial and irrelevant in determining whether it 

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