Full opinion text
OPINION HAROLD A. ACKERMAN, District Judge. This case presents the difficult and delicate issue of what role a court of law should play in reviewing a university’s student disciplinary proceeding. In this case, Robert Clayton, a very intelligent and able student, was suspended for a year from Princeton University following a determination by the student Honor Committee that he had cheated on March 6, 1979 while taking a biology lab practical. This decision was affirmed by the President of Princeton University, William G. Bowen. Although Mr. Clayton later returned to Princeton and successfully completed his studies, the vigor with which this suit was litigated many years after the incident demonstrates the intensely felt sympathies and concerns on each side of this issue. Gene Smith in his biography of Woodrow Wilson, who was head of Princeton University early in this century, describes Wilson’s reaction to the same issue over 80 years ago. A student was expelled for cheating and: his mother came to plead for his reinstatement with the man who passed upon the expulsion. She said she was undergoing serious medical treatments and that the shock of having her boy expelled might well bring those treatments to naught. The answer was, ‘Madam, you force me to say a hard thing, but if I had to choose between your life or my life or anybody’s life and the good of this college, I should choose the good of the college.’ But he could eat nothing at luncheon that day. See G. Smith, When the Cheering Stopped — The Last Years of Woodrow Wilson, 28 (1964, William Morrow and Co.). My conclusion in this case is that Princeton has accorded Mr. Clayton fundamental fairness in convicting him of cheating, and that is all that the law requires. While this ruling may resolve the case at hand, I am under no illusions that it will put to rest the heated debate engendered by this and other incidents where long established honor systems have been attacked. Public opinion on the subject naturally runs the entire gamut from the cynical to the reverential. Joseph J. Ellis, former West Point instructor and author of School for Soldiers, commented: We don’t live in a world in which there exists a single definition of honor any more, and it’s a fool that hangs on to the traditional standards and hopes that the world will come around to him. See, “Cheating Promps Air Force to Halt Cadet Honor Boards”, NEW YORK TIMES, Sept. 20, 1984, p. 1, col. 3. On the other hand, William Fishback, a University of Virginia spokesman, was quoted in the same article as saying of the University of Virginia’s Honor Code: It is the one precious thing to the alumni. Wherever you travel around the country the alumni will ask after the condition of the honor system. Id. While there is no particular evidence before me on the attitudes of the Princeton alumni to their Code, I surmise that their concern is also great. I surmise also that some of their respect for the Code is a retrospective appreciation of the role the Code has played at Princeton in turning young students into adults who must take personal responsibility for their own actions. Oscar Wilde in an epigram once describ- ■ ed a cynic as being a person who knows the price of everything and the value of nothing. If my premise regarding alumni concerns is correct, I suppose one could look cynically at such idealism. Being “burdened” with an honor system, however, can reasonably be viewed, as a vote of confidence in the maturity of a young adult. While there are certainly some doubters, some cynics, and even some cheaters at Princeton, there is evidence in this case that some Princeton students do, even prospectively, recognize the value of the Code. Princeton has concluded that an honor system can have a beneficial effect on the training and education of its students, and I do not view that choice as being devoid of value. With that backdrop in mind, I turn to the facts of this individual case. FINDINGS OF FACT The following findings of fact are made pursuant to Rule 52 of the Federal rules of Civil Procedure. The plaintiff, Robert Clayton as admitted to Princeton University as a member of the Class of 1981. On Saturday, March 10th, 1979, (four days after the episode) Clayton, then a sophomore, was convicted by a student-run disciplinary body, the Honor Committee, of cheating during a biology laboratory exercise. Mr. Clayton was suspended for one year, a result of which he did not graduate until June of 1982. He did, however, successfully graduate and go on to medical school. The defendant, The Trustees of Princeton University, is an educational corporation in the State of New Jersey. It operates the well known and prestigious institution of higher education known as Princeton University (“Princeton”). Princeton offers undergraduate programs leading to the degrees of Bachelor of Arts and Bachelor of Science in Engineering. It has approximately 4,450 students in its undergraduate division and approximately 1,445 students in its graduate division. The plaintiff has raised numerous areas where he feels his rights under the Princeton Honor Code were denied. They are as follows: He was not properly advised of his rights under the Honor Constitution; the Honor Committee abrogated his right to have an advocate on his behalf at the hearing; they improperly interrogated him prior to the hearing; they abrogated his right to call witnesses on his behalf at the hearing; the Committee was biased; the Committee failed to keep proper records of its proceedings; they misrepresented the record to President Bowen; and Princeton failed to supervise or otherwise control the Committee. Each of these issues will be discussed seriatum. THE HONOR SYSTEM With respect to its undergraduate students, Princeton maintains a bifurcated disciplinary system with non-concurrent jurisdiction in two committees, the Princeton Honor Committee and the Faculty-Student Committee on Discipline. Charges of violations of rules and regulations with respect to academic exercises not covered by the Honor System, including essays and laboratory reports, are adjudicated by the Faculty-Student Committee on Discipline. The Faculty-Student Committee has administrative, faculty and student members and can impose penalties ranging from censure to expulsion. The Faculty-Student Committee has no jurisdiction over matters relating to cheating during written examinations, even if the faculty member administering the examination fails to adhere to the formalities which attend the administration of written examinations. It is the nature of the exercise, not the presence or absence of certain formalities, which determines the jurisdiction or the Honor Committee. A form of the phrase, “at Princeton, all written examinations are conducted under the Honor System,” appears in virtually every University publication before the Court. Plaintiff originally contended that the Honor Committee did not properly have jurisdiction of this matter, but plaintiff no longer urges the court to reach this issue, and I shall not. In 1893, the undergraduate students at Princeton established the Honor System. Prior to that year, all undergraduate examinations were proctored by University personnel, and charges of cheating were adjudicated by the faculty and administration. Since then, all written examinations are under the Honor System. Charges of violations of the Honor System are adjudicated by the Honor Committee, an all student body, with a right of appeal to the President of the University. The system is still viable. Cheating allegations are adjudicated by the Honor Committee, composed of seven present and past presidents of Princeton’s undergraduate classes. At the time of Robert Clayton’s conviction, the Honor Committee consisted of the presidents of the four undergraduate classes, two members of the senior class and one member of the junior class. The Chairman of the Committee was the senior who had been president of his junior class. The members of the Honor Committee are agents of Princeton for purposes of fulfilling their Honor Committee responsibilities. The Constitution of the Honor System states: Violations of the Honor System shall consist of any attempt to receive assistance from written or printed aids, or from any person or papers, or of any attempt to give assistance, whether the one so doing has completed his or her own paper or not. This rule holds both within and without the examination room during the entire time in which the examination is in progress, that is, until all papers have been handed in. Article V, par. 1. The Honor Constitution and any informational materials explicitly state that it is an Honor Code violation both to give or to receive assistance on an examination. See e.g., Honor System materials in Matriculation packet; Admission Information bulletin; Undergraduate Announcement; Rights, Rules and Responsibilities. Indeed, after every examination a Princeton student must write and sign a pledge on the exam paper stating, “I pledge my hon- or that, during this examination, I have neither given nor received assistance.” Honor Constitution, Art. V, Par. 4. There was some confusion in the testimony at trial, however, as to whether failure to report an incidence of cheating was a violation of the Honor Code. A careful review of the testimony and the Princeton publications discussing the Honor Code leads me to conclude that failure to report an observed incidence of cheating is not an Honor Code violation. At most, failure to report a violation of the Code is a violation of tradition and common understanding. See Plaintiff’s Exhibit 5, April 1977, letter from Robert A. Connor, Chairman of the Honor Committee to newly accepted undergraduates; Plaintiff’s Exhibit 7 “The Undergraduate Announcement”, April 1976 at p. 23; Plaintiff’s Exhibit 8 “Rights, Rules, Responsibilities, Guidelines for Students,” 1978 ed. at p. 31. The honor pledge is to be given on each written examination. Refusal to sign the honor pledge on any examination paper is “prima facie evidence of violation of the Honor System.” (Article V, Paragraph 3, Honor Constitution). It “must at all times be written and signed by the student.” (Article V, Section 4). Central to the Honor System is Princeton’s Honor Constitution. It details the rights of the accused, the manner in which they shall be investigated, tried and penalized, defines violations of the Honor System, and empowers the Honor Committee to adjudicate alleged violations. In addition, Princeton’s annual publication “Rights, Rules, Responsibilities — Guidelines for Students,” states that “[mjuch of the internal organization and virtually all of the operating procedures of the Honor Committee are determined by the Committee itself. The tone and style of each year’s Committee may vary, but there is a remarkable continuity in procedure from year to year.” Id., page 32. Upon receipt of a charge of a violation of the Honor System, the Committee is empowered to conduct an investigation and, if the facts warrant it, a hearing, to determine whether the accused student is guilty or not guilty. The accused has a right to receive an unsigned letter written in some reasonable detail by the accuser, delivered at least 24 hours prior to the hearing by the chairperson of the Committee. (Article IV, Section 5). If convicted, the student may be suspended for one year or permanently separated from the University. (Article III, Section 2). The student has a right of appeal to the President. (Ibid). At the time of Clayton’s appeal, there was no record of an Honor Committee’s ruling having been overturned by the President of the University. Article IV of the Honor Constitution sets forth in detail various rights of the accused student and the procedures to be followed in conducting hearings. Prior to the hearing, the accused shall have his rights explained to him and shall be asked to sign a statement that the rights have been explained. Article IV of the Honor Constitution states in pertinent part: 3. Six of the seven votes shall be necessary for conviction. If fewer than seven members shall hear a case, unanimity shall be necessary for conviction. A quorum shall consist of five members. 5(5 * * * * * 5. The accused shall learn of the charges brought against him or her through an unsigned letter written in some reasonable detail by the accuser and delivered at least twenty-four hours prior to the hearing by the Chairperson of the Committee who shall explain the charges and enumerate the rights of the accused as hereinafter provided in Article IV, Section 6. The accused shall be asked to sign a statement prior to a hearing saying he or she has been informed of his or her rights under the Honor Constitution. 6. The rights of the accused shall include: a. the right to review in advance all documents constitutioning direct material evidence; b. the right to call witnesses; c. the right to have at any hearing an adviser of his or her choice from among the resident members of the university community, who may speak on his or her behalf and cross-examine the witnesses; d. the right, in the event of a conviction, to receive a copy of a summary statement of the grounds for the Committee’s decision, and to poll the votes of the individual Committee members; e. the right in the event of conviction to receive a record of the hearing. The role of the adviser provided for in section 6(a) of Article IV has been referred to in this litigation as that of the “defense adviser,” and plaintiffs have critiqued the defense adviser’s actions in terms of what would have been effective and zealous representation of an accused by defense counsel in a court proceeding. No evidence was presented, however, to indicate in any way that the role of defense adviser as envisioned by the framers of the Princeton Honor Constitution and carried out in the regular course of Honor Committee proceedings is the same as the role an attorney-at-law should play in an adversary proceeding before a court of law. I ruled in my opinion on summary judgment that the instructions given by the Honor committee to Clayton’s defense advisers that the advisers were to provide a ‘balanced’ picture rather than be ‘overly partisan’ may have compromised Clayton’s defense. This conclusion was, however, made as a result of drawing every inference in favor of plaintiff Clayton, as is proper on a summary judgment motion. The testimony and evidence I have reviewed after a plenary trial now leads me to conclude that there was no error in either the guidance the defense advisers were given concerning their duty or the actual way in which they carried out their duty. While the adviser clearly should act only in the interests of the accused, the manner the adviser may deem most effective is determined by the unique nature of the Honor Committee hearing which is not completely an adversarial hearing. A careful review of the testimony convinces me that Princeton, in its Honor Constitution, and in its implementation thereof, has sought to permeate the proceedings with fairness and truth at the expense of a zealous defense. Article VI of the Honor Constitution requires the Committee to keep a written record of all cases acted upon, and these records, along with the Constitution are “for the instruction of the Committee.” Plaintiff alleges that his rights were denied under this Article because the Committee failed to maintain proper records both before and during the hearing. Prior to Clayton’s hearing, the Committee had lost the written records of all prior Honor Committee hearings and decisions. While the loss of these records was unfortunate, I do not find this violation of Princeton’s established procedures to be the substantial and material violation plaintiff makes it out to be. The Honor Committee which convicted Clayton did keep its own records, and in convicting Clayton they relied on their “own best judgment” and “that precedent of which [they were] aware.” (See Committee’s Letter to President Bowen.) In addition, I have found no evidence indicating that the absence of these records adversely impacted Clayton’s case in any way. Article VI also provides that “the Committee may use recording devices to tape the proceedings of each case.” Plaintiff correctly points out that the actual tapes of the hearing are of a poor quality, and that parts of the hearing testimony were never recorded, including the Committee’s visit to the laboratory where the alleged cheating incident had taken place. While it would certainly have been better for the Committee to have kept a more complete record of the Clayton hearing, Princeton’s own regulations did not require them to meet such a high standard. There is simply no requirement in the Constitution or elsewhere that a verbatim record of the hearing be kept. Plaintiff attempts to graft the requirements of a judicial, adversarial hearing onto a college disciplinary hearing, and I do not find such standards to be appropriate. Plaintiff also alleges that he was not adequately advised of his rights under the Honor Constitution. I find that Clayton had actual and constructive knowledge of Princeton’s Honor System at the time of his arrival at Princeton as a Freshman, and in March of 1979, prior to his first contact by the Honor Committee concerning this case. Prior to becoming a student at Princeton, each accepted applicant must complete various matriculation forms, including a written statement agreeing “to uphold the primary principles of the Honor System.” That statement is written on the blank portion of a printed form which contains an explanation of the Honor System and the complete text of the Honor Constitution. Clayton received these matriculation forms and wrote an essay in his matriculation papers, stating that he understood the Hon- or Code. The 1976 — 1977 version of the Princeton University publication entitled An Introduction to Princeton, Admission Information, contained a brief description of the Honor System. The Undergraduate Announcement for 1976 — 1977 and 1978— 1979 contained information on the Honor System. In addition, Rights, Rules, Responsibilities, 1978 edition, described the Honor System and its current procedures and reprinted the full text of the Honor Constitution. Prior to March of 1979, Clayton had received copies of these publications. Incoming undergraduate students are required to attend a meeting concerning the Honor Committee during the orientation period. The purpose of that meeting is to acquaint the new students thoroughly with the Honor System. Such a meeting was held in September of 1977, when Clayton was an entering freshman at Princeton. He did not recall whether or not he attended such a meeting. The Honor Constitution is also regularly published in' the student newspaper, the Daily Princetonian. It is, therefore, inconceivable to me that Clayton could assert that he was unaware of his rights under the Honor Constitution. THE LAB PRACTICAL In March of 1979, Clayton was a sophomore at Princeton and a member of its swim team. He was also a student in a course entitled Biology 204. On March 6, 1979, Clayton took a makeup written examination or quiz, referred to as a “lab practical”, because he had been at a swim team event when the examination was originally given. Two other students were taking the make-up examination at that time: Howard Nelson (“Nelson”), a fellow member of the swim team, and Robert Varrin (“Varrin”), who had missed the original examination to attend a track meet. The examination consisted of the identification of a number of laboratory specimens, slides, and model parts, which requires the students to walk around the laboratory room. Eleanor Maine (“Maine”), a Teaching Assistant employed by Princeton, remained in the laboratory while the students were completing the examination because students frequently have questions about biology lab practical examinations, such as the exact location of the organ to be identified. Both Clayton and Nelson asked questions of Maine during the time they took the test. Maine sat in the room doing some reading during the exam. It was not her intent to proctor the examination. During the course of the examination, Maine left the room at least once, and, in fact, was not in the room during the events which led to the accusation against Clayton. Maine did not request the students to write out the honor pledge because she was under the impression that it was not necessary for her to do so. Under normal University procedures, however, Ms. Maine should have asked that the pledge be signed, as she considered the examination to be under the Honor System. Whether the exam technically was administered under the Honor Code is irrelevant to this proceeding as plaintiff has waived his original allegations concerning improper jurisdiction of the Honor Committee. After Clayton and Nelson had finished the examination and had handed in their papers, Nelson asked Maine when and where he and Clayton could take another make-up examination in the same course. Maine left the room to inquire about the second make-up examination, while Clayton and Nelson remained. Varrin was still working on his examination, having started a few minutes later than the others. For the period during which Maine was out of the room, the versions of the event vary. According to Varrin, Clayton spoke with Nelson, consulted a lab manual, retrieved his examination paper from Maine’s desk and changed his answer to question 19. According to Clayton, Clayton spoke with Nelson, attempted to consult a lab manual, looked at his examination paper and confirmed the correctness of his answer to question 19, but did not change his answer thereto. Having ascertained the location of their next examination, Maine returned and told Clayton and Nelson about the other make-up examination, whereupon they left. In this proceeding, the court is not concerned with which version is true. My job is not to second guess the substantive decision of the Honor Committee. The Honor Committee obviously believed Varrin’s version of the facts, regardless of the contradictions found in his testimony. THE HONOR COMMITTEE INVESTIGATION Varrin attempted to locate a member of the Honor Committee to whom he could report the cheating incident. After speaking to a member of the Faculty-Student Committee on Discipline, Varrin eventually was put into contact with Craig Marx (“Marx”), who was then Chairman of the Honor Committee. Varrin met Marx in Firestone Library on Thursday, March 8, 1979, at which time they discussed the incident. Marx requested Varrin to prepare a written letter of accusation as soon as possible. Varrin prepared the letter and gave it to Marx later that evening. I find any inference suggested by plaintiff that the letter was not the sole product of Mr. Varrin completely unsupported by the evidence. Because Varrin did not know either of the other two students who took the examination with him, it was necessary for him to attempt to identify them. On Thursday night, after he had given Marx the letter of accusation, Varrin met with Marx and another member of the Honor Committee, Christopher Shields (“Shields”). Marx had requested Shields, an experienced Committee member, to assist him in investigating Varrin’s accusation. The students first went to Tiger Inn, of which Varrin thought Clayton might be a member. After Varrin was unable to identify Clayton from pictures of Tiger Inn members, the students went to Cottage Club, where they met Brian MacDonald (“MacDonald”), an Honor Committee member who was also a member of the Princeton swim team. Varrin eventually identified Clayton from a photograph in a swim team publication produced by MacDonald. The identification process took approximately one and a half to two hours. Following the identification of Clayton by Varrin, MacDonald told Marx and Shields that he did not intend to participate in the Honor Committee’s investigation or hearing because both he and Clayton were members of the swim team. At that time and the next day, Shields attempted to persuade MacDonald to participate in the Clayton hearing. Shields suggested to MacDonald that his participation would enhance the prospect that nothing in Clayton’s favor would be missed, especially because of his knowledge of Clayton from the swim team. Marx, however, concurred in MacDonald’s decision not to participate. On the evening of Thursday, March 8, 1979, Marx telephoned Clayton and told him that he had been accused of violating the Honor Constitution. Marx wanted to know if some members of the Honor Committee could come over and talk to him about it. Clayton responded by saying that he “wished they would come over and get it cleared up right away.” (Clayton testimony, Vol. 2, p. 24, line 23). Marx and Shields went to Clayton’s room at approximately 10:00 or 10:30 p.m. and discussed the cheating allegation with him for about forty-five minutes. During this meeting, Marx and Shields read the letter of accusation to Clayton at least twice in full. Clayton was permitted to look at the letter while Marx or Shields held a hand over the accuser’s name, but he was not given a copy of the letter. Marx and Shields explained that they were not allowed to show Clayton the accuser’s name, and they hadn’t had a chance to xerox the letter without the name on it. Having read the letter several times, Clayton was at this point substantially acquainted with the substance of the charge against him. It is clear to me that he knew precisely what he had been accused of. The credible testimony showed that Clayton was asked for his version of the events surrounding the alleged cheating incident. Clayton flatly denied having cheated, and Marx and Shields continued to ask him specific questions about the sequence of events contained in the letter of accusation. There was some testimony that he changed his story somewhat during the interview, but essentially he denied the accusation that evening and thereafter. During this discussion, Marx and Shields informed Clayton generally of some of the rights he had under the Honor Constitution. Clayton’s right to have a defense adviser and to have a copy of the letter of accusation were explained to him very explicitly. It was mentioned that other rights were detailed in the Honor Constitution, printed in Rights, Rules, Responsibilities. While each of Clayton’s rights were not spelled out in Miranda -like fashion, I find he was reasonably apprised of his rights and given a chance to investigate them further, had he so desired. Clayton may not have understood all his rights in detail at that time because, as he stated, “it was a very shocking experience and unnerving, and it was all very confusing, to say the least” (Clayton testimony, vol. 2, p. 28-29, lines 24 through 1) But he was afforded a reasonable opportunity to learn about those rights, through both his conversation with Marx and Shields and his receipt of numerous Princeton publications concerning the Honor Code discussed earlier. In the course of the questioning, Marx or Shields asked Clayton who the other person was that Varrin had accused. Clayton informed them that Howard Nelson had been with him during the lab practical. Marx and Shields informed Clayton before leaving him that they were going over to meet with Nelson, then discuss the accusations with the accuser again before making a decision whether to hold a hearing or not. Before leaving him, Marx told Clayton not to speak to Howard Nelson. After Marx and Shields had left, Clayton unsuccessfully attempted to reach Nelson by telephone. Because the- telephone was busy, Clayton went to Nelson’s room, arriving before Marx and Shields, and spoke to Nelson. Clayton testified that he only told Nelson, in substance, “Howard, these people are going to come to talk to you. I have been accused of cheating. I want you to stay calm, collected, and tell the story exactly the way you know it.” (Clayton transcript, vol. 2, p. 55, lines 10-13). He then returned to his room. Clayton’s conversation with Nelson was contrary to the specific request made by them. Such actions could give rise to an inference that they arranged their stories, but there is in fact no evidence that this happened. After Clayton left Nelson’s room, Marx and Shields arrived and discussed the accusation with Nelson. After speaking with Clayton and Nelson, Marx found and spoke briefly with Varrin. Having verified that Varrin was certain of his accusation, Marx decided to hold a hearing concerning Clayton and Nelson before the entire Honor Committee. At approximately 1:00 a.m. on March 9, 1979, Clayton and Nelson were informed that a hearing would be held. At some point, the hearing was scheduled for Saturday, March 10, 1979, beginning at 9:00 a.m. At that time, Shields gave Clayton and Nelson the names of several students who were willing to serve as defense advisors. Although the list did not include faculty members, Clayton had been told that he could have any resident member of the University community as a defense adviser, which is expressly stated in the Honor Constitution. Clayton admitted that he understood that he was not restricted to the people whose names were given to him by Shields. The students on the list were former members of the Honor Committee, students who had previously served as defense advisers, or students who had expressed an interest in doing so. Shields did not recommend any particular student on the list over any other. Clayton raises the failure of the Committee to inform him that he could ask a faculty member to be his adviser as an example of how his right to have an advocate on his behalf at the hearing was abrogated. Neither the Honor Constitution nor any other materials describing the Honor System place an affirmative duty on the Honor Committee to notify the accused that faculty members may also serve as defense advisers. Mr. Clayton should have been aware of the general language of the Honor Constitution allowing him to choose from “among the resident members of the University community,” or he could have inquired directly about a faculty adviser, but he chose not to. The fact that Clayton conferred with Professor Mahoney concerning his strategy at the hearing indicates that Clayton was not completely unaware that he could turn to a faculty member for assistance in this matter (see infra). Between 1:00 a.m. and 2:00 a.m. on March 9th, Clayton and Nelson contacted and met with Derek Kirkland (“Kirkland”), whose name had been among those supplied by Shields. The meeting lasted at least one hour, during which time Kirkland, Clayton and Nelson discussed the accusation in some detail. Although a copy of the letter of accusation was not available at the meeting, Clayton knew of its contents. There was also a brief discussion of the Honor Committee procedures. At the time, both Clayton and Nelson were aware that Kirkland had never before acted as a defense adviser. Kirkland left Clayton’s room to meet with Shields, having not yet decided whether he could act well as a defense adviser. During their almost four years at Princeton, Kirkland and Shields saw each other occasionally and considered each other friends. They did not socialize together. They had been in the same dormitory during their freshman year (1975-1976). Shields appointed Kirkland to be chairman of a student committee during the 1976-1977 academic year. Through their acquaintance, Kirkland and Shields came to discuss the Honor Committee on several occasions. At Shields’ suggestion, Kirkland expressed a willingness to serve as a defense adviser. Shields put him on the list of potential advisers. By the time he was contacted by Clayton, Kirkland had familiarized himself with the Honor Constitution and discussed it with Shields. Clayton was aware that Kirkland knew Shields. Kirkland arrived at Shields’ room between approximately 1:30 and 3:00 a.m. For the next hour or hour and a half, they discussed the Clayton case, and the role of the defense adviser in some detail. The letter of accusation and a copy of Rights, Rules, Responsibilities were used during the meeting. Based upon his discussion with Shields, Kirkland decided that he could “do a good job” as Clayton’s defense advisor. In spite of his friendship with Shields, I find that Kirkland in no way compromised his integrity in effectively representing Clayton. The defense he presented before the Committee is the best evidence that his friendship with Shields did not prevent him from actively seeking to protect Clayton’s interests during the hearing. During the course of their conversation, Shields let Kirkland read the letter of accusation. When Kirkland read the letter, he found that its substance was the same as the substance of the charge conveyed to him by Clayton earlier that night. As Kirkland put it during the trial, the letter “contained ... no surprises.” During their conversation, Shields described his reactions to Clayton and Varrin, as well as observations about the strengths and weaknesses of their respective versions of the events. Kirkland recalled Shields saying something to the effect that “it looks bad for Bob.” Although Shields did not recall using these exact words, he testified that he might well have said something to that effect, in order to underscore to Kirkland the seriousness of the situation. At trial, Kirkland characterized Shields’ observations as an effort by Shields to be helpful by alerting him to problems which he might have in acting as Clayton’s defense adviser. Kirkland was “grateful” to Shields for giving him the information. In connection with Clayton’s subsequent appeal to President Bowen, Kirkland described Shields’ efforts as intended “to help [him] help the accused”, motivated, in part, because he was “concerned about the position of the accused.” At the time, Kirkland was concerned that Shields might have a bias which was not favorable to Clayton. However, he believed that Shields would “try quite hard to keep an open mind”. Shields felt that he had no bias, but corroborated Kirkland’s testimony that the remarks were intended to help Kirkland do the best job possible for Clayton. A substantial portion of the conversation between Shields and Kirkland concerned the role of the defense adviser, which has been the subject of considerable testimony in this case. This type of meeting was the time during which a member of the Honor Committee was to explain the role of the defense adviser to the person chosen by the accused student. Shields and Kirkland had discussed the role of the defense adviser in general terms over the preceding year. At trial, Kirkland testified that he perceived the role of the defense adviser as “a shade ambiguous”, acting partially for the accused and partially for the Committee. He understood that it was his duty to be present when the accused was not, “in order to insure that all the facts relevant to the accused’s position be known.” He was to “present questions such that the answers might be favorable to [Clayton and Nelson].” On the other hand, Kirkland understood it to be his obligation to bring unfavorable facts to the attention of the Committee, a view not necessarily shared by Shields and other members of the Honor Committee who testified at the trial. Kirkland understood that he was “to act as [a] not completely neutral, but on the other hand, not completely partisan advocate.” Although Kirkland saw “potential conflicts” in this, as he saw it, ambiguous role, he testified that “they were not in direct conflict in this situation.” From pri- or conversations with Shields, Kirkland understood that the Committee was concerned about being misled by defense advisers who were overly partisan. Other than the question of making unfavorable facts known to the Committee, Shields’ description of his conversation with Kirkland on the advocate’s role is entirely consistent with Kirkland’s. In this regard, it is noted that there has been no allegation in the Complaint or Pretrial Order that Kirkland brought facts unfavorable to Clayton to the attention of the Committee. The role of the defense adviser described by Shields and Kirkland is consistent with the understanding both President Bowen and Donna Packard had of the defense adviser’s role, both of whom had extensive experience with the Honor Committee prior to the Clayton hearing. Shields and Kirkland also discussed possible motivations for Varin’s decision to bring an accusation against Clayton. This topic was also discussed at a subsequent meeting, which included Hamel. This issue was discussed as part of Shields’ efforts to help Kirkland in his role as Clayton’s defense adviser. Kirkland concluded that “there was no maliciousness of intent” on Varrin’s part. There appeared to be “no relationship at all” between Varrin and Clayton or Nelson. He determined that Varrin had not brought a prior accusation, that he was an athlete and, therefore, not likely to be prejudiced against athletes and that he was not a pre-med student, as Clayton was. The final topic discussed by Shields and Kirkland at their late night meeting was the need for an additional defense adviser. Kirkland felt that, because there were two accuseds and because he wanted someone with some experience to assist in the defense, it would be a good idea to have a second defense adviser. According to Kirkland, Shields suggested Packard, who had not only acted as a defense adviser at least once, but who had been a member of the Honor Committee and the Faculty-Student Committee on Discipline. As will be seen, Kirkland was not able to contact Packard until later in the afternoon of Friday, March 9th. On the morning of Friday, March 9,1979, Kirkland, Clayton and Nelson met in the laboratory room where the examination had taken place. Clayton and Nelson reenacted their version of the events. In addition, they discussed the results of the meeting Kirkland had had with Shields, late the previous night. There may also have been a discussion of overall strategy in terms of Shields alleged bias and the perceived procedural irregularities. The meeting lasted approximately an hour. Following the meeting in the laboratory room, Kirkland, Clayton and Nelson went to visit Professor Michael Mahoney, whom Kirkland described as “a trusted friend of Clayton’s and Nelson’s.” At that time, there was a discussion of overall strategy, which centered on what the group perceived as a series of procedural violations committed on the previous evening. These included the failure to give Clayton the written charges and Shields’ alleged bias. Professor Mahoney was attempting to think of a way to get the case away from the Honor Committee and prevent it from coming to a hearing. It was subsequently decided that an attempt should be made to procure Shields’, and possibly Marx’s, recusal, so that the Committee would lack a quorum. These procedural discussions evidence an extensive knowledge of Honor Committee procedures and rights. Following the meeting with Professor Mahoney, Kirkland, Clayton and Nelson went to Nelson’s room and talked for a while. Following the meeting in Nelson’s room, Kirkland arranged his meeting with Shields and then met with Packard to discuss the case for the first time. Kirkland went over the case with Packard. It was decided to present a joint defense with Kirkland having primary responsibility for Clayton and Packard primary responsibility for Nelson, but that, “in large measure, the roles [would be] conjoint.” They discussed the idea of removing Shields. During the discussion, there was uncertainty about whether Shields was really biased and whether the recusal was worth pursuing. Packard thought it was worth pursuing. A possible severance and other issues were discussed. At approximately 5 p.m. on Friday, March 9th, Kirkland met with Shields and Warren Hamel (“Hamel”), a member of the Honor Committee. Shields gave Kirkland a copy of the letter of accusation, with Varrin’s name blocked out. When Kirkland expressed concern that the letter was not being received more than twenty-four hours before the hearing, Shields and Hamel offered Kirkland an adjournment of the hearing, possibly to the following day or the following weekend. Kirkland, who understood that the Committee would be flexible concerning the adjournment, agreed to relay the offer to Clayton and Nelson. Plaintiff points to the lack of 24 hours notice in violation of Article IV, Section 5 of the Honor Constitution as yet another violation of his rights by Princeton. I find such a minor deviation from the regulations inconsequential. The Honor Committee showed Clayton the letter of accusation when they first approached him on the evening of Thursday, March 8, and Clayton was reasonably apprised of the accusation at that time. In addition, Clayton was given an opportunity to adjourn the hearing to a later date should he have felt that the lack of notice disadvantaged him in any way. One of Kirkland’s purposes at this meeting was the attempt to have Shields recuse himself, perhaps with the result that the Committee would lack a quorum to try Clayton. At the same time, Kirkland did not want to antagonize Shields. For this reason, he broached the subject with caution. Apparently, he did so without directly asking Shields to disqualify himself, but in such a manner that neither Shields nor Hamel were actually aware of Kirkland’s ultimate goal of disqualification. Shields only understood Kirkland to be asking if he had prejudged the case. As soon as it became apparent that Shields did not see himself as biased against Clayton, Kirkland dropped his effort. I do not find the evidence to have demonstrated that Shields was unfairly biased against Clayton, and I find no impropriety in the fact that he did not recuse himself. When the prosecutorial and judicial functions of a deliberative body are combined, it is to be expected that a member of that body may comment on the strength of the evidence against an accused before the verdict is announced, but I do not think that necessarily precludes a fair and impartial factfinding process. Christopher Shields was depicted by plaintiff as a biased, aggressive individual who thoroughly dominated the proceeding as an inquisitor. Plaintiff further alleged that Shields was determined to exploit Clayton’s predicament to save the Honor System. I found Mr. Shields to be an intelligent somewhat aggressive individual thoroughly devoted to the principles of the Honor System. While Derek Kirkland, as previously stated, felt Shields had a bias against Clayton, I am persuaded that this was not the case. Shields and his four colleagues on the Honor Committee painstakingly sought to ascertain where the truth lay and acted accordingly. Shields was more voluble than any other member of the Committee during the hearing, but this is not uncharacteristic of a judicial or quasi-judicial proceeding. On balance, I believe Shields sought to reach a just result. Returning to Kirkland’s meeting with Shields, there was a general discussion of the alleged procedural irregularities, during which Hamel informed Kirkland that he did not perceive a significant departure from the Committee’s usual practices. There was also a discussion of witnesses, including those to be called by Kirkland. The role of the defense adviser was again discussed in some detail. Shields and Hamel told Kirkland that he was to “consider himself an eighth member, nonvoting, of the Committee”, and that he was “to put forward the best case possible for the defendant, and bring to the Committee’s attention all the facts that are relevant.” Kirkland’s obligations to the accused student and to the Committee were explained. The meeting lasted approximately forty-five minutes. After meeting with Shields and Hamel, Kirkland met with Packard, Clayton and Nelson to discuss the results of that meeting. Clayton and Nelson decided to reject the adjournment offered by Shields and Hamel, because they were ready for the hearing. In Kirkland’s words: “it did not seem as though there was any major purpose that could be served by it at that time.” Kirkland also characterized the lack of twenty-four hours written notice as “a straw issue” and “not all that important at all.” All four were ready to proceed on the following day. Although Clayton was particularly “keen” because he wanted the matter resolved before he took examinations the following week, Kirkland made it clear that, had it been important, they would have adjourned the hearing. Packard then described the procedures which would be followed during the hearing, drawing upon her experience as a former member of the Committee and an experienced defense adviser. There was also a discussion of the type of demeanor which Clayton and Nelson should display before the Committee and a further discussion of the facts. This meeting lasted approximately one to one and a half hours. Following the meeting among the two defense advisers and the two accused students, Kirkland and Packard met further to discuss the case and the coming hearing. During that meeting, Packard telephoned Assistant Dean Richard Williams, who was her thesis adviser and a fellow member of the Committee on Discipline. Packard called Dean Williams for his advice only, since she knew that he had no authority to interfere with an Honor Committee matter. They .discussed the perceived procedural irregularities, particularly the allegation that Shields had developed a bias because of his initial contact with Clayton. Dean Williams advised Packard, having heard only her side of the story. This session lasted approximately one to one and a half hours. Sometime during the evening of Friday, March 9th, Clayton reached Richard E. Forrestel (“Forrestel”) a fellow swimmer, who had gone to Philadelphia. Clayton asked Forrestel to be a character witness at the hearing. Forrestel agreed to do so. Packard also spoke to Forrestel about his testimony for Clayton. Earlier in the day, Professor Mahoney had agreed to act as a character witness. At sometime following the meeting among Kirkland, Packard, Clayton and Nelson, Kirkland telephoned Shields to refuse the adjournment and to give him the names of the defense witnesses — Forrestel, Professor Mahoney and Maine. Although, at trial, Kirkland did not recall that he had asked that Maine be called, it is clear from the hearing record that the Committee had not intended to call Maine, but that Kirkland requested that it do so. Sometime on Friday, March 9th, Kirkland raised the question of jurisdiction with Shields, who told him that the Honor Committee had jurisdiction. Nelson raised the same question with Dean Williams, who gave a similar response. At trial, Packard, a former member of both the Honor Committee and the Discipline Committee, testified that there was “no question” that the case belonged before the Honor Committee. THE HONOR COMMITTEE HEARING The Honor Committee hearing began at approximately 9:00 a.m. on Saturday, March 10, 1979. The Committee members who heard the case were Marx, Shields, Hamel, Karen Jones and James Bailinson (“Bailinson”). MacDonald had decided to disqualify himself and Robert Thomas (“Thomas”) was not available that day. The witnesses were Varrin, Professor Ma-honey, Maine, Forrestel, Clayton and Nelson. The defense advisers were Kirkland and Packard. The testimony lasted until approximately 4:30 p.m., at which time the Committee deliberated until approximately 7:30 p.m. Much of the testimonial portion of the hearing was taped. A transcript of the hearing and the original tape have been made available to the court and I have reviewed them. Various portions of the hearing were not taped, but I do not find the omissions material to a review of this matter. The following portions of the hearing were not recorded: the Committee’s visit to the laboratory, Mr. Shield’s refusal to allow Clayton to call Ms. Maine again, Clayton’s application to have the charges against Nelson dropped, the defense adviser’s request to have Clayton recalled to rebut statements made by Varrin upon his recall and the denial of that request by Shields, the Committee’s refusal to allow the defense advisers to resummarize following Varrin’s rebuttal testimony, and Mr. Shields’ instructions to the defense advisers at the outset of the hearing that they “cooperate” with the Committee. These omissions were, however, not willful and did not materially affect Mr. Clayton’s rights. In keeping with the requirements of the Honor Constitution and the practices of the Committee, the witnesses were called to testify separately and outside of the presence of Clayton and Nelson, who also testified separately. All of the witnesses were questioned by members of the Committee and by the defense advisers, Packard and Kirkland. Although the hearing was not conducted with the strict formality of a judicial proceeding, having reviewed both the transcript and the hearing tapes, the Court finds that the hearing was conducted with more than sufficient decorum and seriousness to satisfy the requirement of the Hon- or Constitution that the hearing be “formal.” No greater formality could be required in such an academic context. As previously noted, Shields took a very active role in running the hearing and questioning the witnesses, but I do not find that Shields overrode Marx’s role as chairman of the Committee. I also find that the evidence does not support plaintiff’s contention that Shields came into the hearing ready to convict. Varrin was the first witness. The gravarían of his testimony was that, after Clayton and Nelson had turned in their papers and the teaching assistant, Maine, had left the room, Clayton looked in a notebook, took back his paper and then scratched out one answer and wrote in the word notochord, which is the correct answer to question 19. Varrin was quite certain and consistent in his testimony on this issue, never expressing any doubt that he had seen Clayton cheat. Another thing which I definitely saw, at some point, was one of those students — I guess it was the guy Bob— cross out an answer, write in and say verbally what that answer he was writing was. There’s no question about that. I heard him say the answer. I could see his hand scratch it out. I could see his paper. I mean I was close enough at that point to see that he had already — I believe that already even changed the answer once before. In other words, there was already one answer scratched out, you know, and then he scratched this one out again and wrote in his word notochord which is the sort of backbone of the amphioxis. He did this after having looked at his notebook — because I’m absolutely positive of that.” Hearing Transcript 6:5 to 19. I think in most cases if I was not so sure I think I would really think about, you know, whether or not to (indiscernible). But there’s absolutely no question in my mind in this case. I’ve no reason to (indiscernible). I’m not having a great problem in this course. The act was just so blatant. I was upset about it — the blatantness. I’ve never seen anybody in my life in high school or kindergarten cheat so blatantly. I can see where the incidents are very, very close — could be very, very closely related to somebody who told the answer. There’s a fine line between what I was seeing and what I believed I saw and what may have happened if he had not cheated, okay? And, I would have to admit to you that all right, it could have gone either way in many situations. But in this case, there’s no question in my mind that this was a violation of the code. I can’t say it strongly enough. Hearing Transcript 54:10 to 55:4. In contrast to his certainty about the act of cheating, Varrin did express uncertainty about the precise location of the participants as the events unfolded. Varrin also expressed some uncertainty about Nelson’s activity. He did not see Nelson change any answers, but thought that Clayton might have asked him to watch the door and that he had seen Nelson close to Clayton when Clayton and he looked through a book and when Clayton cheated. At the very least, Varrin thought that Nelson had witnessed Clayton’s blatant act of cheating. Varrin was questioned by members of the Committee and by Kirkland and Packard, whose questioning appeared to be directed at demonstrating the inconsistencies in his testimony. Varrin’s testimony was followed by Professor Mahoney, who acted as a character witness. During his testimony, Professor Mahoney told the Committee that, once Clayton and Nelson had received written notification of the charges, he had advised them to proceed. He raised no question about the Committee’s jurisdiction or Shields’ bias. Professor Mahoney was followed by Maine, who described her observations during the portions of the examination during which she was in the room. Maine testified that, when she received Clayton’s paper, she placed it face down on her desk. Maine was followed by Forrestel, another character witness. Clayton’s testimony followed Forrestel’s. Clayton consistently maintained his innocence during his testimony. He told the Committee that, after handing in his paper, he had been uncertain about the answer to the last question, number 19. He unsuccessfully attempted to find it in Nelson’s notebook. He maintained that he then asked Nelson, who responded “notochord.” After ascertaining that Nelson was certain, Clayton testified that he checked his answer, but did not pick up or move the paper on Maine’s desk. Clayton denied that he changed the last answer to “notochord” after checking with Nelson — rather he claimed he had changed the answer in the normal course of the examination. Shortly after Clayton began his testimony, Shields outlined the testimony which Varrin had given, even though Shields thought that Kirkland and Packard had probably already done so. In fact, Kirkland had not done so, because he saw no change from what Clayton already knew about Varrin’s accusation. Clayton testified that he had never seen the accuser before and that there was no reason for him to make a false accusation. In response to a question by Packard, Clayton testified that he did not speak to Nelson until after Shields and Marx had spoken to Nelson because he had been told not to call Nelson. The purpose of the exchange was to convince the Committee that their versions of the event were independent. In giving the testimony, Clayton was deliberately misleading the Committee. At the time, neither Packard nor Kirkland knew that Clayton and Nelson had, in fact, spoken to each other during the interval between the visit to Clayton and the visit to Nelson, having been told by Clayton and Nelson that they had not done so. During his testimony, Clayton voluntarily signed the honor pledge on his paper. At the time, the Committee told him that no adverse inference would be drawn from his failure to have done so, something which the Committee might have been permitted to do by the Honor Constitution. Prior to his testimony, but after the hearing began, Clayton signed a statement that he had been informed of his Honor Constitution rights. That document is no longer available. Although Clayton denied actually signing such a document, he has admitted that he agreed to do so. While Clayton claimed at trial that he was not then aware of his rights and so did not understand the document, the court finds that he had actual and constructive knowledge of those rights, especially since he has admitted consulting the Honor Constitution himself in preparation for the hearing. Technically, such a statement should have been signed before the hearing began (Article IV, Paragraph 5 of the Honor Constitution), but the Court finds that the delay caused no prejudice to the plaintiff, since he did agree to sign the statement. Nelson followed Clayton in testifying before the Committee. Nelson voluntarily signed the honor pledge when asked to do so at the beginning of his testimony, having been assured that no adverse inference would be drawn from his failure to sign at the time the test was given. Nelson was told that he was “at the very least a witness in the case and possibly implicated by giving aid according to the accusation____” The Clayton and Varrin testimony was briefly described to him. Nelson’s substantive testimony was virtually identical to Clayton’s. Plaintiff has attempted to portray the Honor Committee’s accusation of Howard Nelson as an abrogation of Clayton’s right to call witnesses on his behalf. Plaintiff alleges that Nelson’s testimony, which was entirely exculpatory with respect to Clayton, was tainted by his status as a possible Honor Code violator. This “taint” was unfair because, plaintiff alleges, Nelson was not properly appearing at the hearing under the Honor Constitution in the first place because he had not been formally accused of violating the Honor Code. I find no merit at all in this argument. Nelson’s testimony was not accorded any less weight because he was an accused, and Nelson was properly before the Honor Committee. There was no encroachment on Clayton’s right to call witnesses on his behalf. Following Nelson’s testimony, the members of the Committee and the defense advisors visited the laboratory in which the examination took place. Since no testimony was taken, this event is not reflected in the hearing tapes. The purpose of the visit was evidently to clarify the size of the room, since distances and fields of vision had become an issue during the hearing. During the visit, there was a discussion of how the events might have happened. In visiting the laboratory, the Committee was clearly attempting to do a thorough job in fulfilling its responsibilities. While at the laboratory, Kirkland felt that members of the Committee expressed surprise at the smallness of the room. Kirkland, on the other hand, attempted to demonstrate that “the line of sight was not all that good” and that Varrin could have been mistaken. During the walk back from the laboratory, Packard and Kirkland spoke to Bailinson, who indicated that the room was much smaller than he had thought and that this lent credibility to Varrin’s version of the events. At the end of the hearing, the defense advisers each gave their summations. While Shields’ instructions to the defense advisers were not stated in explicitly clear terms, Shields did get the message across and the defense advisers did understand that each of the accused was to be given individual treatment. I find that Kirkland and Packard did a creditable job on behalf of Clayton and Nelson in presenting a coherent, believable theory of the events Varrin thought he saw in the biology laboratory on March 6, 1979. Kirkland gave the first summation on behalf of Clayton. Kirkland suggested to the Committee that Varrin was mistaken in his perception of the events during the examination and that his recollection was faulty, but that he had become psychologically “locked into a story.” Kirkland urged the Committee to question Varrin’s entire testimony on the basis of his uncertainty about certain points. Packard then spoke about both accused students. First, she spoke about Nelson, pointing out that Varrin was unsure of Nelson’s actions and that he did not press his accusation that Nelson watched the door. Packard then began to speak on behalf of Clayton as well. She also attacked Varrin’s credibility, pointing out possible inconsistencies in his testimony. Packard mentioned that the Committee had two persons’ word against one, as did Kirkland. Then, Kirkland delivered a separate statement for Nelson. There followed a discussion among Kirkland, Packard and the Committee, in which the advisers again urg