A Guide To College Disciplinary Proceedings

The Context

A college diploma remains an essential element of long-term career success for most Americans. College remains a place where we expect our children to encounter new ideas, to hone their analytical skills, to challenge and to be challenged intellectually, and most importantly, to appreciate the vital role of basic decency and fairness in a civilized society. Understanding the importance of a college education, millions of students and families send vast sums of money to colleges and universities (the terms will be used here synonymously), secure in the knowledge that they are investing in their child’s future. Basic principles of fairness disappear in most colleges, however, when a student is accused of violating the school’s code of conduct.

The Problem

Every college has written rules of behavior that students are expected to follow, and written rules that govern the procedures that the school promises to follow in determining whether the student is innocent or guilty of misconduct charges, and if guilty, the appropriate penalty. Regrettably, most colleges have chosen control over fairness, and deprive students accused of wrongdoing of rights that most Americans regard as essential to justice. Even when charges may result in suspension or expulsion, few colleges allow the accused student adequate time to prepare a defense, the right to present witnesses, to cross-examine witnesses against him, even the accuser, the right to have counsel actively involved in the hearing, and a transcript or recording of the proceeding, so an appellate board or court can determine if the hearing was fair. Some disciplinary boards create written decisions so sketchy in detailing the bases for the finding against the accused, that appeals all but certainly fail. Courts have been overly deferential to institutions of higher learning. While most courts have ruled that some form of hearing is required before a student can be suspended or expelled for violating the rules of conduct, they have allowed the students’ rights at such hearings to be minimal.

Some colleges do recognize the moral imperative to provide truly fair disciplinary hearings. Whether your son or daughter attends a college with fair disciplinary hearings or a more typical school where such hearings are rigged against the student, a thoroughly prepared defense is essential. This Guide will highlight the basics of college disciplinary proceedings and the best way to approach them. It is presented to parents as well as students because many parents will want to help their college student child if they are faced with a penalty such as suspension or expulsion that may follow them and hinder their success throughout their lives. The Guide should also be read by college students who must face their disciplinary board on their own.

The Public/Private College Distinction

Courts distinguish between public and private colleges in assessing their obligations to students facing disciplinary sanctions. Public colleges are subject to the United States Constitution, specifically, the mandate that no person be deprived of liberty or property without “due process of law.” Due process is a notion precious to Americans, but like most things, the principle alone tells us little without details. When the Due Process clause of the Fourteenth Amendment to the Constitution applies, as it does in the case of state colleges and universities, the courts ask the question “what process is due?” The answer varies according to the specific context. As mentioned, state and federal courts that have ruled on challenges to the constitutionality of public college disciplinary proceedings, have been far too deferential to the institutions, and not sufficiently concerned with the potentially devastating impact of an erroneous guilty finding in a serious college disciplinary case in which the student lacked basic procedural protections. At private colleges, the federal Constitution does not apply. Courts have held that codes of conduct written into student handbooks create a form of a contract between the college and its students. As with public universities, however, most courts have gone out of their ways to defer to the colleges.

Common Elements of College Codes of Conduct

As a general matter, the more serious the offense charged, the greater the procedural protections due to the accused college student. Courts have required public colleges to grant the student facing suspension or expulsion, at a minimum: (1) notice of the charges against him; and

(2) some kind of hearing at which the student can rebut the charges. More notable than those minimally required constitutional rights are the rights not guaranteed. While some public colleges do provide greater protections at their disciplinary proceedings, such as the ability to present favorable witnesses, and sometimes the ability to confront adverse witnesses, many do not. While some public colleges allow a student’s attorney to be in attendance, many do not allow the attorney to actively participant in the hearing. In those hearings, the attorney is allowed only to consult from time to time with his client.

As mentioned, the more serious the charge against a student, the greater the procedural protections that must be granted the student. There is no uniform standard. The courts recognize that requiring colleges to provide full trial-like hearings would create more administrative and financial burden than the courts believe is constitutionally mandated. A particularly difficult situation arises when a student has been charged with a crime and a violation of the college code of conduct, based on the same alleged facts, and the criminal trial is pending. Many colleges will not delay the school disciplinary hearing until after the criminal trial, thus confronting the student with a difficult decision with enormous implications. If the student testifies at his disciplinary hearing, anything he says may be used against him in court at the criminal trial. If, for example, the student concedes some facts at his disciplinary hearing, he may have unwittingly made it easier for the prosecutor to obtain a conviction at the trial of the criminal case. On the other hand, if the student refuses to attend or to speak at the college disciplinary hearing, which is his right, the likelihood of suspension or expulsion will be greater. No student facing criminal charges should ever testify at a college disciplinary hearing without the advice of counsel. If the hearing is held while a criminal trial is still pending, the student will be allowed to bring a lawyer to his hearing and to consult with his attorney. His lawyer, however, will not in most cases, be allowed to present the case.

The Dilemma of Accusations of Rape or Sexual Assault

Accusations of rape or sexual assault against a college student – almost always levied against a male student – place the accused, even if innocent, in great danger of a guilty finding by a college disciplinary board, followed by expulsion. Rape and other forms of sexual abuse of women are abhorrent as well as criminal, and should result in a guilty perpetrator’s expulsion from college. Nevertheless, not every accusation of rape is true. The situation is complicated by the politically correct mantra adopted in so many colleges that sex after any doubt expressed by the female student, is a form of rape. A woman who agrees to intercourse after initially refusing, especially when alcohol or drugs are involved, and who then regrets her choice, is encouraged by many self-described feminists to claim that she was pressured into sex against her will. The federal civil rights statute, Title IX, requires any college or university that accepts federal funds to allow a student claiming sexual assault by another student, to insist that her alleged perpetrator be brought before a disciplinary board for a hearing.

No reasonable person can doubt the importance of taking allegations of sexual assault on campus with the utmost seriousness, and of allowing victims of sex crimes to file accusations against the perpetrator without fear and with the knowledge that her complaint will be addressed. The fact remains, however, that false accusations occur. Given the gravity of an accusation of sexual assault, the accused who denies the charges must be given a fair and impartial forum, free from bias, in which he can present his defense. An accusation of a sex crime levied by one student against another must begin a search for the truth, not a witch hunt. The only means of maximizing the likelihood of a correct finding are procedures that not only encourage the filing of complaints by students alleging abuse, but that also protect the rights of the accused. Most students brought before their college disciplinary board on a charge of rape or sexual assault will find that their procedural rights are inadequate, given the draconian consequences of a negative finding. Expulsion is likely. Title IX requires that the identity of the student found to have committed a sex crime on campus, be made public. Recognizing the dangers of a sex crime accusation, and the inadequate protections for the accused, any student who denies the allegations must prepare his defense as thoroughly, and present it as powerfully, as the truncated process allows.

Assaults on Freedom of Speech

A second problematic category of disciplinary code violations are those involving speech, including symbolic speech. Many college codes of conduct contain vague requirements that students be respectful to one another, and equally vague prohibitions against harassing speech. College administrators often consider any provocative speech that offends members of some group defined by race, religion, gender, ethnicity, nationality or sexual orientation, to violate the college disciplinary code. Such a controlling view of prohibited speech on a public university campus violates the First Amendment’s guarantee of freedom of speech. No one in our vibrant democracy has the right to never be offended by the views of another. For example, a student whose religion considers homosexuality to be sinful and who is overheard in the cafeteria pronouncing that “gays and lesbians will rot in hell,” may well find himself facing breach of conduct code charges at many colleges. Yet, such speech is an opinion on a controversial issue with social and political implications, and at a public college, is constitutionally protected.

A student who states publicly on campus that women should not serve in the military, that they are physically weak and should stay home caring for their children, might also face charges, despite the fact that he is entitled to hold and express his opinion on the proper roles for the sexes, regardless of how antiquated or unpopular his opinion may be. Oliver Wendell Holmes reminded us that the Constitution protects not “free thought for those who agree with us, but freedom for the thought that we hate.” Speech, especially on matters of political or social import, need not be either polite or politically correct.

Preparing for a College Disciplinary Hearing

Ideally, any college student facing a serious charge, one that could result in suspension or expulsion or a permanent stain on his college record, should have the assistance of counsel in preparing his defense. Even, as if too often the case, the student’s lawyer will not be allowed to participate in the hearing, an experienced attorney is trained to understand applicable rules, to apply them in his client’s interest, and to tell his client’s story compellingly. It is unfair to expect a young adult who must face college administrators, who may already be biased against the accused, to prepare his defense alone. If there is simply no ability to afford an attorney, this Guide should still be helpful for a student who must face a college disciplinary board.

Every hearing is different. Details of preparation will differ according to the seriousness of the charge and the rules that will govern the proceeding. Preparation will be very different for a hearing at which witnesses will testify than for a hearing which allows no more than an opportunity for the accused student to tell his version of events.

Following are some general tips for preparing an effective defense.
  • Understand the rules that will govern the disciplinary proceeding. The relevant section of the College Handbook must be read carefully.
  • Make sure that you understand exactly, the charges against you. Notices are often improperly vague. If you receive a vague notice, ask in writing for a notice that sets forth at a minimum: (1) the precise act or acts the school claims violated the code of conduct; (2) the provisions of the code of conduct that were violated; (3) the factual bases for the accusation, including the identity of any accusers or witnesses who spoke to school authorities; (4) the identity of all witnesses who are expected to testify against you. The request may not be granted, but should be made in order to put the Board on notice that you insist upon a fair hearing.
  • Consider writing a letter in advance of the hearing, to the Chair of the Disciplinary Board or the administrator who will preside over your hearing, delineating the governing rules according to the Handbook, asking for a written response that there will be no deviation from the Rules, and if there is to be a deviation, a detailed explanation of any divergence from the procedure appearing in the Handbook, and the reasons for the difference.
  • Think about the nature of your defense. Is it strictly factual or factual and legal? For example, if you are accused of violating a provision of the Code that prohibits offensive speech, do you deny the accusation completely? Do you agree that you made some comments, but that they were misheard or mischaracterized? Do you admit to the accusation, but state that your speech was protected by the First Amendment in a public college, or in a private school, a College Handbook declaration that the free exchange of ideas on campus is encouraged and protected? If you are handling the case on your own, you cannot be expected to explain the law as effectively as counsel, but it may be wise to submit a letter to the Disciplinary Board explaining any legally-based objections to the charges.
  • Analyze the case against you honestly. Many college disciplinary charges, especially on less serious matters, can be resolved with an acceptance of responsibility by the student, and an agreed upon penance. Will you be wasting your time or worsening your situation by aggressively defending against a charge that is fair and accurate?
  • If you have been accused of a violation of the college code that is also a crime – for example, rape, assault, theft, vandalism – and there is a chance that you may be charged criminally, or if you have already been charged, do not proceed to the disciplinary hearing without retaining counsel. It is crucial that you not unwittingly make statements that may harm the defense of your criminal case. Difficult decisions may have to be made as to whether or how you participate in the college disciplinary hearing. These decisions are best made with the assistance of counsel.
  • Consider whether there were witnesses to the act or acts which resulted in the charge against you, and if so, whether they would be helpful or harmful to your defense. If witnesses are to be contacted, tread carefully. Under no circumstances should a witness be intimidated or harassed. Make sure that you understand any prohibitions against making known the name of your accuser. While I would regard any rule that prevented reasonable investigation as part of the preparation of a defense in a serious case, to be illegal, you want to avoid additional conduct code violations charges that might have to be challenged in court.
  • Chronologies can be vital if you are charged with an act that can be disproven or thrown into doubt with a timeline of events. Imagine, for example, that you were identified as having participated in a fraternity house party at which illegal drugs were used. You agree that you were at the frat house, but you left before the party began. In order to successfully present that defense, you would need to know when the party started, and would want to create a chronology of your activities before and after the party.
  • Ask whether the charge against you was based on an improper bias – for example, a professor charging you with violating the college’s requirement of “respect” for other students, because the professor resented your vigorous disagreement with a political agenda she advanced in her course. If you suggest bias, make sure that you are on solid ground and can provide examples of your accuser’s words or actions that suggest bias. College administrators on your disciplinary board will likely be prone to defending their colleagues.
  • Prepare your presentation in advance. Practice. Don’t wing it. Even if the setting is relatively informal, it is easy for anxiety to cause you to forget key points that you want to make.
  • Be respectful in tone and words throughout your defense. Being respectful does not mean capitulating to unfairness without protest, or being afraid to make your case forcefully. It means avoiding personal attacks or insults to the individuals who will decide your case.
  • Tell the truth. If you are caught in a lie, it can damage your reputation and result in a harsher sanction than might otherwise have been imposed.
Conclusion

Some day, courts and legislatures may appreciate the immorality of unfair disciplinary hearings in our colleges and universities – the very places where moral living and good citizenship are intended to be taught – and mandate fair process. Just rules can be devised that will not overwhelm colleges with administrative burdens. For now, however, a college student charged with a serious disciplinary infraction will likely be forced to defend himself in a proceeding that leans in favor of the accuser and makes a legitimate search for the truth difficult. Students must take defense of a misconduct charge with the utmost seriousness. Attorney assistance is always advisable for serious charges. Whether or not the student or his or her family can retain counsel, considerable time, thought, and effort should be spent in order to present an effective defense.

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