©2014 Kenneth N. Margolin
If you are ever charged with violating the code of conduct of your college or university, you will want to do everything in your power to achieve a fair result. You will need to decide, often with little time to reflect, whether you plan to admit to the charges and accept whatever penalty the college authorities decide to impose, or to resist the charges, and if so, how vigorous should be your defense. If the charges against you are minor and the potential consequences not of a type to harm your education or permanently blot your record, retaining an attorney is probably overkill. In such a situation, you may do well by consulting with a faculty advisor and meeting informally with the college official who will decide your fate, to come to a resolution. If, on the other hand, the charges against you are serious and may result in a permanently diminished college record, in suspension or expulsion, then attorney assistance is advisable. This article will discuss the types of assistance a skilled attorney can provide that may help you defeat an unfair charge or to minimize the sanctions if the college finds against you.
The nature of attorney assistance will vary somewhat depending on the procedural rules governing disciplinary hearings at your school. A student will be allowed to have his or her case presented by their attorney in relatively few schools. If your college provides for administrative trial-like proceedings in serious cases, at which you can be fully represented by counsel, then you should allow counsel to present your case. A lawyer skilled in litigation will be able to present your story and evidence more persuasively than could most students alone, and will be able to keep the hearing board focused on evidence that is relevant. He will also do all in his power to persuade the disciplinary board members to shed any preconceived notions about your likely guilt or innocence.
In most colleges, attorneys are not allowed to present their student-client's case at the disciplinary hearing, which is the situation that will be assumed for the purposes of this discussion. In the majority of these schools, an attorney can attend the hearing and can confer with his client as needed, but cannot address the board. At many colleges, a lawyer may not even accompany his client into the hearing room. If you have retained counsel for a hearing at such an institution, then all his work on your behalf must be done before the hearing begins. The types of assistance that an attorney can provide in your defense fall primarily into the following categories: (1) understanding the college's substantive and procedural rules as they apply to the charges against you; (2) assessing whether any civil laws or judicial cases may impact your case; (3) communicating with the college authorities, with an eye toward focusing college officials on your right to a hearing that is as impartial, thorough and fair as the severity of the charges warrant; (4) investigating the facts relevant to the charges and your defense; (5) helping you to decide whether to contest the charges or admit to them and attempt to obtain the most lenient penalty the college may be willing to impose; (6) if you contest the charges, assisting you in the tone you should take, the facts you should emphasize, and way that you should approach the disciplinary hearing. If your attorney can accompany you inside the hearing room, or if you would be allowed to confer with him outside, then advice and consultation during the hearing should be added to the preceeding list.
The best way to understand how an attorney can help a student deal with college disciplinary charges levied against you, is in the context of a hypothetical, but realistic case. Imagine the following set of facts:
A college sophomore takes a date, a woman he has been out with a few times, but with whom he is not in a committed relationship, to a fraternity party at which there are many students from the college present, loud music, dancing, prodigous amounts of alcohol being served, and some marijuana being smoked. The student and his date are enjoying the party, drinking a fair amount, but not keeping track of how much liquor they have consumed. As the party continues late into the night, the young man and his date become increasingly affectionate, dancing erotically and occasionally making out on one of the many couches in the frat house. The female student takes the male student's hand and leads him upstairs to an empty room with a bed. The woman initiates sexual contact which ultimately leads to unprotected sexual intercourse. The next thing that the male student remembers is waking up next to his date – they are both naked – just as she is also awaking. She shakes her head as if to clear the effects of the night's drinking, looks dismayed, and says, "oh my god, what happened? what happened?" Three days later, the male student receives a letter from the Dean of Students informing the student that he has been charged by a female student, who is not named, with sexual misconduct. He is informed that he must appear before a college disciplinary board consisting of three faculty members and two students, and that the board will decide if he violated the college's code of conduct, and if so, what penalty will be imposed. The young man calls his parents and tells him what has happened. They immediately understand the seriousness of the situation, and retain an attorney to represent their son.
Following are some steps the male student's attorney might take to assist him in the preparation of his defense. The steps are for purposes of example only. In a real life situation, the attorney's role often evolves to meet developing facts.
A careful client interview is the foundation of most legal cases. The attorney should obtain the student's personal and family background, in order to have an understanding of his client as a person. He would then have the client tell him what happened in as much detail as possible, from a period of time before the party began until the student woke up with his date after the party ended. The nature of the relationship between the male and female student would be explored in detail. To the fullest extent possible, the attorney would attempt to understand the personality of the female student.
A careful review of the student handbook sections on the code of conduct and the procedures for disciplinary hearings would be undertaken. The attorney would also want to familiarize himself with any relevant judicial case law regarding students' rights (or lack of rights) in college disciplinary hearings in the state in which the school is located. For example, some college codes of conduct define sexual harassment as including sexual relations with another student unable to understand the sexual contact or to resist it. The attorney would have to consider how that provision might affect the hearing if both students were equally impaired due to drinking, and whether it mattered who initiated the sexual contact.
3. Pre-Hearing Decisions
In cases in which the student has committed serious violations of the college code of conduct and is almost certainly to lose a disciplinary hearing, the attorney may advise him that his best chance for reducing the severity of the sanction is to admit to the violation and seek to work with the college to avoid a draconian penalty. The most difficult decisions will come in cases in which the student is likely to be charge with a crime or aleady has been charged. Take the hypothetical case used in this article, and assume further that the male student has been charged in criminal court with rape. The attorney will have to weigh with his client the risks and benefits of attending the school disciplinary hearing and risking saying something that might be used against him in the rape case, or refusing to attend the hearing, which may increase the likelihood of expulsion. The attorney would almost certainly attempt to persuade the college to delay the disciplinary hearing until after the criminal trial, perhaps even offering to have his client take a leave of absence and stay off the campus until after the criminal trial, but the college is under no legal obligation to grant the request.
Communication with College Officials
Once the attorney had been formally retained by the client, he might communicate with the college administration, notifying the school that he represents the client in the matter of the conduct code violation charges. If, as if often the case, the letter notifying the student of the charges was vague, the attorney might insist that a more detailed charge letter be sent, explaining exactly what offense or offenses were being alleged, and which sections of the college code of conduct were allegedly violated. It would be critical to know, for example, whether the college was alleging that the male student raped the female student or whether the claim is of some form of less grievous sexual or other misconduct. The attorney might seek a delay of the hearing in order to allow for time to properly investigate and prepare the defense. He might attempt to obtain from the college a written acknowledgement that the rules of procedure set forth in the college student handbook, would be strictly followed by the school.
In the hypothetical example used, there may have been many witnesses who saw the male and female student together before, and perhaps after, they had sex in the upstairs room. Counsel would want to speak to as many witnesses as possible, or have an investigator speak to witnesses, to have as complete an understanding as possible of what witness testimony at a hearing might be, and whether it would be favorable or unfavorable. During the investigation, the attorney would need to take care not to violate any of the college's confidentiality rules. He would probably conclude that communicating with the female student, even if no rule prohibited the contact, would probably be too risky, as any communication might be interpreted by the student as pressure or harassment.
Preparation of the Defense
As we are assuming a college that will not permit the attorney to present his client's case at the disciplinary hearing (a great injustice, in my opinion, for charges that may result in suspension or expulsion), the attorney's job will be to help his client understand how best to handle the case before the disciplinary board. The attorney will help the student with matters of what facts to emphasize, what witnesses to bring, how to address the board from the beginning to the end. If the disciplinary board will accept a written statement after the hearing is closed, the attorney might draft and file such a statement.
If the disciplinary board decides against the student and imposes a damaging sanction, the student will want to review with his lawyer the possibility of an appeal within the college, and the viability of a lawsuit challenging the hearing as unlawful on various grounds.
A lawsuit will have the best chance of success in cases in which a public university has violated basic rules of fairness – for example, by refusing to give an adequate notice of the charges – and thereby violated the Constitutional mandate of due process of law. A lawsuit against a private college will have little chance of success unless the school has blatantly failed to follow its own procedural rules.
A student charged with a serious violation of his or her college's code of student conduct, especially one that might result in suspension or expulsion, should retain an attorney to represent them at the hearing, or if that is not allowed by the college, to help them prepare for the hearing. Consequences of a suspension or expulsion, or severely negative entry on a student's college record, might have life-long adverse consequences. Most college disciplinary proceedings are stacked against the student. Many do not guarantee procedural protections commensurate with the seriousness of the charges. Attorney assistance will not guarantee success, but will give the student the best chance of achieving a just result.