Colleges Should Inform Students of a Right to Consult with Counsel, as Soon as the School Charges the Student with a Serious Breach of Disciplinary Rules

©2015 Kenneth N. Margolin

Unless college students charged with serious conduct code offenses are notified as soon as they are charged, that they have a right to consult with an attorney, college disciplinary hearings will continue to churn out injustice, and cause terrible harm to students innocent of the charges against them. Given the resistance of most college officials to the intervention of lawyers, change will come only with legislation. The Massachusetts Legislature must act to protect the rights of college students in the Commonwealth, as academia appears unwilling to change its destructive lack of fair procedures.

A typical college disciplinary proceeding resembles in many ways, the justice system of a tyrannical dictatorship. A serious charge may result in the destruction of a college education, with corresponding financial harm and future damage. Yet, the notice to the student charged with violating the college’s conduct rules, may be vague, revealing little of the detail necessary for preparation of a solid defense. Often, the notice merely parrots the sections of the Student Handbook, the student allegedly violated. Rarely is the student provided with critical detail such as the time, date, and location of the alleged offense, what, precisely is the evidence that gave rise to the charges, and whether the college is aware of any exculpatory evidence, evidence that might refute or weaken the charges.

Shortly after, or at the same time, the student is notified that he is alleged to have violated college rules, the student is told that he must meet with an administrative official who is investigating the charge. The meeting is mandatory. The student is usually told that before the meeting, he can consult with a faculty advisor – an attorney is never mentioned. Most faculty advisors serve primarily, often unwittingly, to wrongly downplay the seriousness of the upcoming meeting, telling the student not to worry, just tell the truth, be yourself, and all will be fine.

At the meeting, usually with a dean or assistant dean, the student has exactly zero procedural protections. The college official, seeking admissions that can be used against the student, or simply being untrained in proper investigative technique, may ask leading or imprecise questions, to which the nervous student often answers affirmatively without understanding the consequences of the question and answer. To take a real-life example from a recent case involving an allegation of participation in a drunken party with property damage, one of the college Dean’s questions, asked in a matter-of-fact manner, was, “you probably wish you could go back and change your behavior, don’t you?” The student answered, “yes, I guess I wasn’t thinking straight; maybe I had too much to drink.” At the student’s disciplinary hearing, his general answer to a vague question, was taken by the disciplinary board members as an admission to the charges. In fact, the student denied any involvement in property damage, and was simply musing aloud that his life might be simpler if he’d stayed home that night and read a book. I have seen similarly sloppy questioning, with innocent-in-fact, but guilty-sounding answers, in cases as serious as alleged campus rape.

The disciplinary hearings themselves run a gamut from reasonably fair, to events resembling the old English star chambers, the reasonably fair hearings being in the minority. The accused student rarely has the right to counsel in the hearing room, and never the right to have the case presented by counsel. Many schools do not allow the accused to directly question his accuser (not generally an effective right in any event, if the student cannot consult with an attorney). At some colleges, the disciplinary board may consist partially or largely of college students, who have no business determining the truth or falsity of allegations of conduct that may amount to a crime. A panel of college students is unlike a “jury of one’s peers.” Jurors do not volunteer for jury duty, and are summonsed from a wide geographic area, representing divergent life circumstances, the so-called “wisdom of the community.” College students who serve on a disciplinary board have decided they want to exercise power over fellow students, and are often steeped in today’s politically correct college culture. Most importantly, while jurors may find facts, trials are presided over by judges, experienced in the rules of evidence and procedure, and in the law.

Informing accused students from the outset, that they can consult with counsel, and allowing counsel to be present at hearings on serious charges, is no panacea, but will prevent a great deal of injustice. A student advised by an attorney, will understand his rights, will be better able to identify witnesses or evidence that may exonerate him, and will more likely choose his words carefully when questioned by college authorities. College officials, aware that their actions are being scrutinized by an attorney, may work harder to bring objectivity and fairness to their schools’ disciplinary proceedings.