©2014 Kenneth N. Margolin
While all college disciplinary codes require some kind of proceeding before a student can be punished for alleged infractions, the proceedings themselves are often the stuff of tyrants' dreams. Notice to the student of the charges may be perfunctory, unhelpful in preparing a defense. Most schools do not provide the accused with a list of witnesses who will testify against the accused student. Worse, many schools present their cases with written statements, thus depriving the student of the ability to confront and challenge the author of the statements. An accused person's right to challenge witnesses against him or her, is a cornerstone of our system of justice – of any fair system of justice. The ancient Hebrews, Christians, and Romans all recognized the importance of allowing an accused to confront his accusers and witnesses against him face to face.
In addition to giving short shrift to the right of confrontation and cross-examination, colleges often provide students with insufficient time to prepare an adequate defense, even when suspension or expulsion from school may result. While most colleges grant appeals, many keep no transcript or recording of the disciplinary hearing, minimizing the student's likelihood of a successful appeal. Worst of all, there is a prevailing sentiment of patronization of the accused student, a feeling that he should confess to his alleged misdeeds, accept his punishment, and not cause trouble by demanding a hearing. The presumption of innocent has been twisted 180 degrees to become a presumption of guilt – doubly so when the charge is sexual harassment or sexual assault.
How did this bizarre situation – a world in which institutions of higher education incorporate injustice into their institutional cores – come to pass? The answer lies in the old, outmoded view of colleges as nothing other than safe and welcoming places where young people can begin their transitions from childhood to adulthood and full citizenship. Nowhere in the old model is there an appreciation of colleges and universities as big business. Big businesses are precisely what colleges and universities have become. Their identies as businesses must be recognized, as college debt now exceeds one trillion dollars, many colleges are fiscal and real estate powerhouses, and the administrators of colleges are highly paid executives, with presidents not infrequently earning more than a million dollars per year. The courts have been complicit in maintaining the fiction that colleges aren't really businesses, and should thus be exempt from the level of fairness to their customers, demanded even from the corner variety store, let alone large corporations. The Massachusetts Supreme Judicial Court, as is true of many other courts, has pronounced that it is "chary" of interfering with disciplinary decisions made by private colleges and universities, even when those decisions appear unjust or in contravention of promises made by the college in its handbook. Only in extreme situations, are the courts willing to intervene.
What is needed to cause judges and legislators to insist that college disciplinary proceedings must provide procedural rights sufficient to make them fair, is a recognition that higher education has become big business. Massachusetts, for example, has a powerful consumer protection statute, requiring fair dealings by businesses in their relations with consumers. The federal First Circuit Court of Appeals recognized that the purpose of the law was to "ensure equitable relationships between consumers and [businesses]." Businesses that treat consumers unfairly receive little deference from the courts for their decisions. It is now time to recognize that institutions of higher learning, whether for-profit or non-profit, are major corporations. Their consumers are their students, who alone or with their families, have often undertaken burdensome debt to purchase the university's product. To deprive the consumer – the student – of the benefit of what they have purchased, with disregard for basic principles of fairness, is unjust. The courts should rule that inadequate college disciplinary procedures are illegal, as against public policy – a determination within the authority of the courts to make. If the courts will not treat colleges as the businesses that they have become, legislatures must step up and pass laws requiring adequate procedural protections before a student can be deprived of his or her higher education.