©2014 Kenneth N. Margolin
The procedural protections granted college students charged with serious disciplinary offenses are inadequate on most campuses. Too often, colleges, deans and professors who preside over disciplinary proceedings, ignore even those modest protections that are promised in their own school's Student Handbook. Worst of all, rather than protect the accused student's presumption of innocence, too many college officials, either explicitly or subconsciously, reject it. The student is presumed guilty as charged, until and unless they prove their innocence to the satisfaction of the presiding college personnel. College officials justify the short shrift given procedural protections for the accused, by noting that college disciplinary proceedings are not criminal prosecutions, but are internal matters of a civil nature. While it is technically true that college disciplinary proceedings are not criminal cases, some elements of our criminal law, must be incorporated into college hearings, if they are to be at all just. This article will explore which aspects of criminal trials, in the name of fairness, should be incorporated into college disciplinary hearings.
First, and most critical, is the need for a change in the mindset of college presidents, deans, and professors, regarding the presumption of innocence. They must understand and embrace the presumption of innocence in all cases, no matter how serious or politically sensitive, the alleged infractions. College disciplinary proceedings are closer to criminal cases than a typical civil case, in which, for example, one party accuses the other of driving negligently, or breaching a contract. A college student brought before the disciplinary board, is charged with violating the school's norms of conduct, just as a criminal defendant is charged with violating society's norms of conduct. If the charges are serious, the consequences can be severe and lifelong.
The presumption of innocence holds a sacred place, not only in the American justice system, but in all civilized societies. More than a century ago, in the case of Coffin v. United States, 156 U.S. 432 (1895), the United States Supreme Court traced the presumption of innocence to Deuteronomy. The Court quoted Lord Gillies, from an old English case, who explained that the presumption of innocence "is to be found in every code of law which has reason and religion and humanity for a foundation [and] is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman ...."Id. at 456. Only when college officials who preside over hearings of accused students understand the origins of the presumption of innocence, truly believe in it, and act accordingly, can disciplinary proceedings be fair.
The other elements of the criminal justice system that should be integrated into every college disciplinary process are: (1) the right to a detailed notice of charges; (2) a description of all evidence upon which the charges are based; (3) the right to copies of all documents the college seeks to use in its case against the student; (4) the identity of witnesses who will testify against the student; (5) a reasonable amount of time to prepare for the hearing; (6) the right to testify, and to bring witnesses; (7) the right to confront adverse witnesses; and (8) the right to have counsel present at the hearing, with reasonable opportunity for consultation.
No student accused of wrongdoing can mount an adequate defense without knowing in detail, why the college is charging him. Sometimes, having reviewed the evidence, the student may be able to quickly persuade school officials that they were mistaken. Without a detailed notice of charges, a description of the evidence against him, copies of documentary evidence to be used by the college, and the names of adverse witnesses, the risk is too great that an innocent student will be found guilty, simply because he lacked sufficient information to prepare a defense. Allowing an accused student sufficient time to prepare a defense, should require no explanation. The consequences of suspension or expulsion may last a lifetime. There is no excuse for rushing a student to judgment. Most colleges allow an accused student to bring witnesses on their behalf, as well they should. The ability to present favorable witnesses is essential. If a witness observed the alleged incident, or can provide the accused student with an alibi defense, there is no reason to prevent the accused from bringing that witness to testify.
More controversial to some colleges, is the right for the accused to confront adverse witnesses. Particularly when the charge is a physical or sexual assault, college administrators have expressed fear that allowing the accused to directly confront his accuser, may be too traumatic for the witness. Imagine, however, how traumatic it may be for an innocent student to be charged with a physical or sexual assault. The right of cross-examination stands astride the presumption of innocence as a corner stone of a fair system of justice. In extremely sensitive cases, such as in allegations of rape (what should be colleges' proper role in such cases, is a topic for another time), the presiding officials can always take steps to protect the accuser from abusive or intimidating questioning.
Most controversial of all, for most colleges, is the right of an accused student to have his or her attorney with them in the hearing room. The federal First Circuit Court of Appeals, has required colleges to allow the presence of counsel, when the student is facing criminal charges for the same incident that gave rise to the college proceeding. So far, however, the right to counsel has not been mandated in other cases, even when a finding against the student may result in suspension or expulsion. As I have written elsewhere on this web site, to expose a student to the risk of losing tens of thousands of dollars worth of education, having his reputation stained, and his employment prospects damaged, with no ability to consult with counsel during the hearing, is extraordinarily unfair. When the minor inconvenience to college officials that the presence of counsel might bring, is balanced against the terrible consequences of an adverse finding in a serious disciplinary case, the importance of the right to counsel should be obvious, and universally accepted.
Even more than in some criminal cases, a student charged with a serious disciplinary offense, is at risk for lifelong adverse consequences. Our criminal justice system embodies principles of fundamental fairness that have evolved over the centuries. Rather than resist key elements of the criminal justice system, college administrators should learn from them, and adopt those that are needed to insure fairness to the accused.