©2014 Kenneth N. Margolin
Many articles on this web site discuss inadequacies and injustices in college disciplinary proceedings. Those deficiencies are real, and threaten the ability of college officials to bring fair outcomes to their schools’ conduct code hearings. I will continue to write about what is needed to make college disciplinary proceedings fairer. Nothing is more important, especially when a student denies the charges against him. In those instances, focused thought and intense preparation is necessary before the student walks into the hearing room. But, what happens when the student has committed the infractions with which he is charged – infractions that carry the possibility of suspension or expulsion? After all, students charged with violating their college codes of conduct, are not always innocent. When the student either wants to accept responsibility for his serious code violations, or knows that the evidence against him is so overwhelming that resisting would be futile, and likely harmful – what, then?
If the student is going to admit his wrongs, typically referred to as “accepting responsibility,” the entire focus becomes minimizing the sanction that the officials presiding over the disciplinary hearing will impose. Despite the fact that the student will not be marshalling evidence to rebut the charges, preparation and strategy are still essential. Sometimes, a student will be surprised to hear me tell them that I will have no magic tricks to prevent them from suffering adverse consequences as a result of their wrongdoing. In too many movies and television shows, and sometimes in real life, a criminal defense attorney gets a client who is guilty, off with a “not guilty” finding. While college administrators have an obligation to present sufficient evidence to justify an adverse disciplinary finding, and while I will counsel a vigorous defense if they lack such evidence, there are crucial distinctions between a college disciplinary hearing and a criminal trial, that make it more difficult for a “guilty” college student to walk away unscathed.
In a criminal trial, the prosecution must prove every element of the offense “beyond a reasonable doubt.” In most college disciplinary hearings, the lesser civil standard of “preponderance of the evidence” applies. Under the lower standard of proof, if the college hearing officials believe it is a tiny fraction more likely than not, that the student committed the offense, they can find against him. Rarely, if ever, will a college student be allowed to have his defense presented by his attorney. At best, at some colleges, or in certain situations, the student may be able to confer with counsel in the hearing room. The other critical distinction between college disciplinary hearings and criminal trials, relates to the accused’s right to choose whether or not to testify. No criminal defendant can be forced to testify, and the jury is instructed that no inference of guilt can be drawn from the defendant’s silence. The opposite is true in most college hearings. If the accused student refuses to testify in his own defense, the hearing officials may conclude that his silence was tantamount to an admission of culpability.
How, then, should a student who has committed the offense with which he is charged, present himself at his hearing? In some instances, the primary tools the student must obtain, are insight and empathy. Students who have committed serious infractions, have come to me, upset that they were caught, but with little appreciation of the inappropriateness of their conduct, and how their conduct was likely viewed by college administrators. In those situations, I try to have my client understand that unless they internalize the fact that their behavior was out of line, it will be difficult for them to persuade the hearing officials that they are apologitic, and that there will be no repeat. While I am an attorney, not a therapist, in some instances, helping my client gain insight into why their misconduct, rather than administrators’ oppression, was the cause of their disciplinary hearing, is a key step toward lessening the sanction. With insight, the student must express sincere contrition, and persuade the disciplinary officials that they will not regret giving the student a second chance, and allowing them to continue their education with no, or minimal, disruption. Just as in a case when the charges will be defended, I work hard with my clients, on the right tone to take, facts to emphasize, and arguments to avoid.
Even when the student has committed the offenses charged, it is still essential that inaccurate or excessive charges, be contested. It is not unusual for a college to charge a student with multiple offenses, one or more of which, may be incorrect. If there are mitigating circumstances that are credible and sympathetic, they should be presented in a manner that does not make them sound like an excuse for misbehavior. Supportive letters from the student’s professors or advisors within the university, can be especially important. Letters from people outside of the college, are not as effective, and will not be accepted by all schools. For the student charged with a serious disciplinary offense, who must admit to the charges, the quality of his or her presentation may be the difference between a drastic sanction, and one that is tolerable.