OK, so the recent controversy with Dennis Lennox has made me wonder, what about the student who hung the nooses?
First, I owe the student somewhat of an apology. I got caught up in my “A good prosecutor could win that case” syndrome and misinterpreted the law too far. I claimed that U.S. Federal Code Title 18, Part 1, Chapter 13, § 245 could be interpreted to mean that he should be charged with a hate crime being “something intimidating that interferes with attending a public college, therefore making it a hate crime and thus illegal.” I was interpreting Clause (b) which states “Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with…”
And here’s where I messed up – I did not look up any case law for “force.” Hanging a noose is not a threat of force. Is it intimidating? Yes. Is it a threat of force? No. Also, it was not directed at any particular group of people. Sure it’s pretty much common knowledge that nooses are a symbol of lynching and racism against African Americans, but you can’t use an assumption as a prosecutor.
The point is, there’s too much “reasonable doubt” that a “good prosecutor” would know that he’d be playing on the emotions of any jury in trying to convict this student.
But wait, there’s more…
According to a CM-Life article, “Because of the Family Educational Rights and Privacy Act [FERPA], university officials cannot release student records, which include disciplinary matters. Information about the case – including the student’s name – might only be released if Isabella County Prosecutor Larry Burdick decides there is enough evidence to press charges.”
Here’s an excerpt from FERPA (Title 20, Chapter 31, Subchapter III, Part 4, § 1232g (b) (6)):
(B)Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence (as that term is defined in section 16 of title 18), or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.
(C) For the purpose of this paragraph, the final results of any disciplinary proceeding—
(i) shall include only the name of the student, the violation committed, and any sanction imposed by the institution on that student; and
(ii) may include the name of any other student, such as a victim or witness, only with the written consent of that other student.
And here’s the definition of “crime of violence (as that term is defined in section 16 of title 18)”:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
So, then if a hate crime was committed (that would mean that my current interpretation of the U.S. Code that discusses hate crimes would be incorrect, and my original interpretation would be correct), then the university would be allowed to release the information.
Dawn Hertz, general counsel for the Michigan Press Association said, “There is someone in Washington [D.C.] who would threaten their federal funding if they released their name. The university really has to be extremely careful.”
Tony Voisin, director of Student Life, said explained the disciplinary process by saying that anybody who violates the Student Code of Conduct must meet with a Conduct Proceedings Officer, after which, the officers decides if enough evidence exists to discipline the student. He then went on to explain that hearings only take place when students do not admit guilt, saying, “To date, we’ve had about 10 hearings. Over the course of the year, we may have 700-plus violations, and only 20 are tried. We can’t share even the fact that there is a hearing. The university can’t share those results with anybody other than the student involved. It’s the business of the student involved and nobody else.”
Dean of Students, Bruce Roscoe told the CM-Life that even releasing the student’s punishment could be a violation of FERPA.
But we just read in FERPA that it’s acceptable to release the students name and punishment if the crime was violent. The only crime that hanging a noose could be is a hate crime (I know hate crime isn’t a technical term, but it’s quicker than saying the crime established in U.S. Federal Code…). So, if the student WAS found guilty, then logically, the hearing results could be released.
So, in a normal situation, I would assume based on all of this that the student was found not guilty, and thus the results of the hearing could not be released; however, since I know the history of CMU (specifically the Student Life Department), I’m not going to assume anything.
If anybody does have any information about the case, please let me know.
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