[I had to rethink advice on a particularly tricky situation in an institution this weekend, and returned to this explanation I once wrote to put on the agenda a way to rethink discipline at the university. And I thought: why not blog it?! So, here it is…]
When people act out, it is mostly a symptom of a problem, and not the problem itself. When we discipline and expel students, all we do is address the symptom, but the problem remains.
Traditional approaches to justice and to discipline tend to emphasize that when (usually imposed) rules are transgressed, the transgressor must be punished (usually by a designated disciplinary office at the University).
Restorative approaches focus on relationships, where the ideal society is a society of whole relationships. These are whole relationships from the family environment, to the schools, to universities to civil life. If relationships flourish on these levels, the nation will flourish. In this context, an injustice is seen as an injury to a relationship or relationships, and if we want to do justice, we work on restoring relationships. Restorative approaches, therefore, focus on creating and maintaining whole relationships amongst staff, and students, and between staff and students. And in some incidents, the university community, and the bigger community in which the university is situated.
While it might be that most people in this community want to do the right thing, we are stuck in past experiences and patterns that make it difficult for us to think differently. We were all shaped by certain schooling, a certain upbringing, our own experiences, and most of these experiences focused on wrongful deeds and punishment of those deeds as a method to “root out” the behaviour, with very little understanding of where those deeds emanated from. In a sense, we are broken in that way, because our underlying needs that were not addressed, which led to the symptoms (our bad behaviour), were never addressed. We have never really learned how to hold the space for ourselves, and others, to deal with whatever is underlying the symptoms of our wrongful behaviour. We have also not grown up in a space where our social skills, our skills of being amongst people who are different from us, were as important as our academic skills. For example in education, the focus is very much on who is in control, and if the lecturer is not in control, then we ask how will we rectify that.
In an ideal world, an effective learning environment will be regarded as one where relationships amongst everyone is cherished and built, along with high-quality instruction. In situations where there is trust and where the teaching is interesting, it is more difficult for students to misbehave. Of course, not all misbehaviour will stop, but we as educators and authority figures also there carries a great responsibility in solving these problems with responsibility, setting an example of how we want to see the world. And is a better world not a world where we enable people to learn from their mistakes and give them a chance to restore relationships?
In a process of making people understand how the relationships were violated through behaviour, in identifying the needs and obligations in the situation, and keeping the offender accountable by making them understand the effects of the offence and repairing the harm, one must be careful not to get stuck on guilt. Guilt must be transformed to take account of the behaviour and the harm caused, in the hope of moving forward. And in this process, the offender, the victim and the university have a direct role to play. Offenders must have an opportunity to show remorse, rather than being threatened by punishment. Enough studies show that traditional methods of seeking punishment induce shame and humiliation and that this in turn leads to a broken, rather than a healed society.
In any wrongdoing, there are natural consequences. A healthy system will use wrongdoing as an opportunity to equip the offender with how to handle the consequences – how to account for it, how to cope with it, and how to make amends. In punishment, there is no teaching opportunity, there is no reflection on the effects of your wrongdoing. It does not teach empathy, as it places the focus on the individual (and how to escape punishment), rather than to think about how your behaviour can affect others. Punishment also relies on an authority to deal out the punishment, and this teaches us that exerting power is a way of controlling people’s behaviour. There is little social and emotional well-being in a situation of exerting control.
2 How do we get that type of society?
2.1 Building skills to solve problems
We must understand that wrongful behaviour is a signal that a person lacks the skills to deal with a difficult situation. Our job cannot merely be to impart intellectual knowledge. We must also teach our students how to be responsible citizens and give them the tools on how to deal with difficult events. In the case of racism incidents, even more so. This might also mean that we as lecturers need to acquire new skills on how to appropriately deal with difficult situations. And importantly, an environment that is positive and where students and staff feel safe and supported will provide spaces where dialogue can take place.
2.2 Non-violence: physical, psychological and emotional safety
Feeling safe is one of the most basic human needs we as humans have. Feeling safe does not only have a physical aspect, but also a psychological and emotional aspect too. This feeling of safety should not be compromised for a want to control a situation. In this sense, it is also important to note that our language can at times be violent. Any use of language that demeans the way people see themselves, or the way that others view them, can be seen as violence. We, therefore, need to find ways to communicate in non-violent ways, if we really want deep-seated change. So, the language we use when we address issues are not mere semantics, but can actually shape and change the way we solve these problems.
2.3 Using restorative justice to repair harms and to give offenders the change to make right
Ultimately, the way we respond to student misconduct reflects the society that we aspire to be. Arguably, restorative justice is educational for the student offender, but it also focuses on meeting the needs of the students that were harmed, as well as the needs of the institution. The rest of this document will map out what such a process entails and how it can be implemented in a university.
3 Restorative justice
There are four main principles in restorative justice:
- Inclusive decision-making where offenders are invited to voice their ideas on how the harm should be repaired and where victims and the community members get a chance to express the harms they experienced. This can take various forms (circles, boards etc).
- Active accountability where the offender is not a mere passive onlooker to the proceedings, but where the offender is actively asked to tell the story and to identify harms and to take responsibility for making it right. When the offender comes up with a sanction, the offender also makes it his own.
- Repairing harm where the question is how the victim and the community can be restored, as opposed to how the offender must be punished (with no restoration in the community). The idea is to look at the problem, rather than the person, and to make right the problem and to give the offender a chance to fix the problem.
- Rebuilding trust after the harm, by rebuilding relationships in order to have a stable community. As the person who abrogated the community trust, the offender will have a central role to play in this. As trust once lost is difficult to regain, this might take a longer process and involve dialogue with clearly articulated tasks.
When these four principles are taken into account the students are encouraged to take responsibility for their misbehaviour in an active and productive manner.
A restorative practice might not always work, and as such is not meant to replace traditional systems, but often precede them in the hope that the latter will not be necessary. When people do not want to partake or where offenders cannot see the impact they had on others, it might not be the best option. The difference between the two systems is perhaps illustrated as follow:
|Restorative Justice Practice||Disciplinary hearing|
|More like mediation||More like criminal court|
|People-centred with a focus on social support||Procedure-centred with a focus on authority/legitimacy|
|Identifies the harm||Identifies the code violation|
|Invites participation – no private deliberation||Limits participation – private deliberation, role limitations|
|Victim-focused / balanced||Offender-focused|
|Strengthens membership by trust-building sanctions||Limits membership by restricting behaviours/privileges|
For a restorative justice process to proceed the accused student has to admit to fault so that the talks can focus on how to make things right.
There are various models that the restorative justice practice can take place. The core of every practice is dialogue centred around three questions:
- What was the harm? What impact has this had on you and on others?
- What can be done to repair the harm? What do you think needs to to happen to make things right?
- What can be done to rebuild trust? What can you do that can demonstrate you can be a positive member of our community?
3.2.1 RJ conferences:
A conference focus on the dialogue between the offender and the harmed parties. The harm is discussed, whereafter it is decided what steps the offender can take to repair the harm. The dialogue is guided by trained facilitators.
The process usually works as follows: offender admits to wrongdoing it gets referred to RJ offender agrees to RJ participants are identified (usually harmed parties, supporters) conference takes place where offender takes responsibility for his action harmed parties explained how they were impacted by the act offender might want to apologise (in writing) and this might be distributed in an effort to show that the department took action.
3.2.2 RJ circles
Similar to conferences, but often involve more people. The dialogue is often conducted by making use of a “talking piece” that allows for only one person at a time (the person with a talking piece) to talk, with the talking piece being passed in the circle.
3.2.3 Four rounds
Similar to the RJ circles, this dialogue has four rounds. The first round is an introductory round where the facilitator welcomes the group and summarizes the issue that brings everyone together. Everyone introduces themselves and state why they are there and what they hope to achieve from the process. These hopes will be summarized by the facilitator. The second round is where the participants share their feelings and perceptions about the issue and identify the aspects that are important to them. During this discussion, the facilitator will summarise the emerging themes and areas of agreement and disagreement, as well as the harm that was identified. In the third round, the participants share ideas on what needs to happen for resolution. Lastly, the closing round gives participants a chance to give final comments or observations about what the circle meant to them.
Circles are helpful where the line is not clear between the offender and the harmed party, or where there is no offender but where harmed parties want to share their concern.
3.2.4 Restorative justice boards
This is similar to disciplinary hearings with standing board members that are made up of academics, staff and students, but where the hearing is run more in the form of a conference than a traditional hearing. While harmed parties are invited, they are not needed for the hearing to proceed. They retain the right to make private deliberations, but try and avoid it and rather increase the active participation of offenders and harmed parties. In any event, the board try and represent the perspective of the harmed party as closely as possible. Also, during the sanctioning portion of the board process, the decision-making is focused on the goals of repairing harm and rebuilding trust.
3.3 How to identify the harm
One popular way to identify the harm is by making use of the medicine wheel as a way to encourage storytelling. This is often needed because there are various layers of harm caused by student misconduct. Each participant should be allowed to describe the incident and how it affected them. The participants will first start to tell the story (from their perspective). Thereafter, the material/physical harm, the emotional/spiritual harm and the relational/communal harm will be discussed in their own time.
When the harms are identified like this, it might be that the solution will differ to similar cases, because the harms are different. This is one of the benefits of restorative justice – it acknowledges the complexity of every case, and it speaks to the needs of the participants, rather than some arbitrary neutral rule.
3.4 Repairing harm and rebuilding trust
For trust to be rebuilt it is important for offenders to know how their behaviour is affected by it. Once the harm is identified, participants explore how the harm can be repaired. The solutions are often a combination of tasks that speaks to address the different harms identified:
- Emotional / spiritual harm is healed with an apology
- Material / physical harm is healed with restitution
- Relational / communal harm is healed with community service
3.4.1 Guidelines for an apology
Where an apology is rendered, the following should be in the apology:
- What happened: a description detailing the harm caused by the offence to show that the offender understands the harmful consequences of his or her behaviour.
- My role: an acknowledgment that the offender was responsible for the offence without denial, minimization or displacement of the acknowledgment.
- How I feel: an expression of remorse or regret in causing the harm.
- What I won’t do: a commitment to not causing further trouble.
- What I will do: A statement of commitment to make amends for the harm casued.
The apology should ideally also be in writing or recorded.
3.4.2 Guidelines for restitution
Restitution is either monetary payment or labour that pays for financial losses.
- Monetary losses: clear specification of financial or property losses to the harmed party.
- Payment plan: this is a plan that takes into account the needs of the harmed party, but also takes into account the offender’s ability to pay. Labour or other creative plans can be used where monetary compensation is not possible.
3.4.3 Guidelines for community service
Volunteering in the community is helpful to others, show that one is socially responsible and rebuild the trust that is lost through misbehaviour. It is an opportunity to make amends but also to demonstrate good citizenship. Projects should include the following:
- Proposal: the offenders should take the lead on proposing a relevant form of community service, and should include the type of service project, how it makes amends for harm done to the community, learning goals for the offender’s personal development and a timeline for service completion.
- Validation: a verification that the project was completed satisfactory.
- Reflection: a letter that describes the value of the service experience personally and for the community.
3.4.4 Trust-building activities
When the harm was committed the university community might question the trustworthiness of the offender. In this sense, positive actions might be required from the offender to rebuild trust and to integrate into the community again. When the RJ process cannot identify an alternative for integration, the suspension might be the only viable outcome.
3.5 Restorative justice and social justice
The interplay between restorative justice and social justice is especially important in incidents of intolerance or hate, especially in those cases where there may not be a clear violation of laws or policies. When one wants to improve the campus climate through an RJ process, it is important to remember that participants come from different backgrounds and that participants will have different degrees of social power. It is therefore important to pay attention to social inequalities and try and offset the power balances. This can be difficult because facilitators are not neutral or impartial and value-free. Facilitators should therefore be mindful of their blind spots and try and be multipartial, actively supporting all participants without preference or taking sides. The following should be kept in mind when thinking about power relations:
- harmed parties might be afraid to speak to offenders;
- offenders might be overcome by shame;
- facilitators / participants can subconsciously steer dialogue instead of allowing a space for it to develop;
- when students are in the company of staff members, they might feel deferential to staff;
- some less affected parties might not believe that their needs are as important as those of others;
- race, class, gender, sexuality, ability, religion – all that can play a role in power balances;
- the ratio of support amongst the participants on the offender or the victim’s side can affect how well people feel supported;
- when there is coalition-building in that other participants are expected to accept one point of view;
- when one person gets more air time than others;
- when a party is stubborn and refuses to move from a stated position.
There are various techniques to overcome this problem, namely:
- Keep social power in your awareness by assessing the group and anticipate the expressions of power;
- To co-facilitate with someone that has a different social identity;
- To balance the airtime by inviting quiet members to share – also be mindful that people might speak in different ways (ie writing instead of talking);
- Encourage people to speak in first person narratives and personal sharing, in order to steer away from judgmental claims and attributions;
- Have a space for quiet reflection where participants are encouraged to gather their thoughts before speaking;
- Be mindful of body language and facial expression as cues to be more encouraging. Some people might feel shame, sadness or hopelessness, and might need reminding that the dialogue is an opportunity to help meet the needs and to find a resolution;
- Share relevant stories to model authenticity and vulnerability;
- Bring the power dynamics to the surface by identifying what you are observing. Ask for clarification and don’t let less powerful individuals shoulder the burden of challenging oppressive statements.
3.6 A script for a restorative justice conference
There is a useful script in the “Little book of restorative justice for colleges and universities” by David Karp. There are various red flags to look out for during a pre-conference interview. Firstly, it must be a voluntary process, parties should not feel coerced into participation. Secondly, the offender must admit responsibility (except with it being an RJ board). Thirdly, the victim’s safety is paramount. Victim blaming cannot be accepted, and the victim must be strong enough to manage the process. Lastly, clear signs of mental illness are an indication that it might be a suitable process.
3.6.1 A script
It is important to get the seating arrangements right. Usually, when it is in the form of a circle, the offenders are ideally situated opposite the harmed persons with some distance between them. The parties least affected and the community representatives will sit furthest from the main facilitator.
Practicalities such as instruments (script, seating plan, flip chart etc) must be ready before the parties arrive. The parties should be seated according to your seating plan. The two parties should also not wait in the same area, so ensure that you have separate waiting spaces for the parties. When everyone is ready, invite the participants into the room and seat them accordingly.
|Welcome everybody. Please ensure that your phones are on silent or switched off. The conference will be approximately [___] hours, as agreed. I would like us to introduce ourselves and indicate our reasons for being here. I am [_____], and I will (co-)facilitate today’s conference Now we can go around in the circle and tell us your name, and your connection to this conference.|
|Thank you for attending. Today we will be focussing on the [incident] that happened on [date]. We will focus on what [offender] did and its impact on others. Once we have learned more about what happened, we will work to identify the harm that was caused and how it might be repaired. We will also focus on what can be done to reassure us that the behaviour will not be repeated.|
|This conference is voluntary. We do not have to reach agreement today, and if we do not, the case will be referred back to the disciplinary office to be handled in a different way. I am hopeful that we will reach an agreement and if so, we will submit it to the disciplinary office for approval. Does everybody understand this?|
|A goal of this conference is to create an environment in which everyone can speak freely and fully about how they feel about what happened. As facilitators, our job is to ensure that everyone here has a voice. Sometimes we will have open dialogue in which everyone can participate as they wish, at other times we will go around the circle inviting each person to offer their perspective. When we do, a person can always pass if they do not have anything that they want to say at that time. Another job for us as facilitators is to create an environment of trust, so that we can speak honestly about the incident. To enable this, will everyone agree that what is said in this circle will stay in the circle – that we will not talk about what people have said here to others?|
|Academic and other involvement of the offender|
|We would like to begin by getting to know you. Can you tell us what classes you are taking? What activities are you involved with on campus? What do you hope will come of the discussions today?|
|(Remember that a co-facilitator can take notes on this section, and list all the harms on a flipchart.) Now we will learn about the incident by asking everyone to tell us about what happened from their perspective. We will start with the person responsible, then hear from the harmed persons, and then support persons. Let’s start with [offender] because that is where it all began.|
|To person responsible:|
|What happened? What were you thinking at the time? What have you thought about it since? Who has been affected by what you have done? In what way? What do you think you need to do to make things right? Is there anything else you would like to say or ask at this time?|
|To harmed parties:|
|What happened from your perspective? What impact has this incident had on you? What has been the hardest thing for you? What do you think needs to happen to make things right? Is there anything else you would like to say or ask at this time?|
|To support persons:|
|Is there anything you would like to say or ask at this point?|
|You have now had a chance to hear about how the incident has affected everyone. Is there anything you would like to say at this time?|
|We will not look at the list of harms, and refine them if needed. Is there anything that needs to be added or changed? (Check for accuracy, and use clear, specific, and not smoothed over language)|
|We have now spoken about the harms and listed them. We must now focus on how we can make things right. We need to ask: How can the harm be repaired? How can we regain confidence in [offender] so that we can trust that he will be a responsible member of our community? Please remember that we want to focus on finding solutions. We are not here to judge [offender] as a good or bad person, but we want to know how to repair the harm and rebuilt the trust. If we do not believe that we can work on solutions together, then we need to discuss this and perhaps end the conference. If you are happy with the process so far, we can continue. (This is about halfway through the conference. Parties can indicate if they want to break now, but keep the break short.)|
|We now need to come up with ideas. We will write down all suggestions on the flip-chart. Later we can decide to make changes and finalise an agreement that works for everyone. During this process, we will post all of your ideas on the chart. We can refine this later and write up the agreement. Ok, [offender]. Look at the list of harms, what do you think can be done to repair them? What else can you do to demonstrate that you can be a positive member of our community? Ok [harmed person]. Looking at the list of harms, what do you think can be done to repair them? What else would you need to see from [offender] to restore you confidence in him? What do everybody think of what we have come up with so far? Let’s make sure we have a plan that best addresses our concerns and is also fair and reasonable. [Offender] would you be able to agree to these suggestions? Do you have any concerns that we should address?|
|Now that we have reached an agreement, we will submit it to the disciplinary office for approval. If the agreement is accepted, we will have to complete the tasks by the deadline agreed upon. If [offender] does not complete the tasks, he cannot register for classes the next semester / graduate. If [offender], you believe that this process was concluded unfairly, you can appeal the agreement. While the agreement is being written up, we would like everyone to complete an evaluation form. This will help us know if the process worked for you or not, and how we can improve.|
|Thank you everyone for your hard work today. In closing I will give each person the opportunity to say how they are feeling and how things went. I wills start by saying…|
This is a work in progress, but I am hoping that more education institutions rethink how they do disciplinary hearings. My mom always said: Big peace will come after the smaller peace we make with one another.
DR Karp “The little book of restorative justice for colleges and universities” (2015)
D Smith, D Fischer and N Frey “Better than carrots or sticks: restorative practices for positive classroom management” (2015)