Time for College Justice Legislation

The National Center for Education Statistics reported that in 2011, American colleges and universities hold endowments exceeding $400 billion. The Chronicle of Higher Education reported that more than 40 private college presidents earned seven figure annual incomes, while another 150 university chiefs earned in excess of $500,000 per year. Forbes magazine writes that total college student debt in the United is approximately $1.2 trillion, and is crippling the economy. All the while, college tuitions rise unabated, exceeding the pace of inflation. The statistics reveal what most of us already know – colleges are big business. Yet, when it comes to the manner in which institutions of higher education treat their students who are charged with violating the school's disciplinary code, the courts treat colleges and universities as if they were small, under-funded organizations, requiring protection from government interference into their affairs.

This note will discuss the situation with private colleges and universities. Public colleges are bound by the United States constitution, whereas the rights of students of private colleges are contractual. Disciplinary hearings at public universities will be discussed in another article.

The fact is that colleges, regardless of their for profit or nonprofit status, are businesses, and students are their consumers. There is something very wrong when a mom and pop convenience store owes more consumer rights to its customers than do the members of a multi-billion dollar industry. Yet, the courts have allowed just such a situation to evolve, by refusing to require that private colleges abide by their student handbooks when meting out discipline, and by failing to establish as a matter of public policy, that fundamental fairness when students are charged with serious offenses, requires a fair and unbiased hearing, and rulings on credible evidence, not just a show hearing. As will be discussed below, the rhetoric of the courts, which often sounds reasonable, is rendered hollow by what is, in fact, a hands off approach to private colleges when they discipline their students.

Courts in most jurisdictions, including Massachusetts, have ruled that the relationship between a college student and his school is contractual, with the terms of the contract established by the student handbook and other promotional materials upon which a student might reasonably rely. Some courts have modified the contract language by holding that the "contract" is flexible, with courts giving colleges considerable leeway in the manner they implement their student handbook. While most courts claim that private colleges must comply with their own rules in good faith, and must avoid serious disciplinary decisions that are arbitrary and capricious, they also highlight courts' reluctance to interfere in university affairs. The result in practice is that private colleges are rarely held accountable when they treat their students charged with disciplinary code violations, unfairly.

A typical case of a private college violating a student's rights to basic fairness, would begin with the letter sent to the student by the school, notifying the student of the charges against him. The universal understanding of the purpose of a notice of charges in advance of an administrative hearing, is to give the recipient sufficient information to mount a defense. Thus, a notice will not serve its basic purpose unless it specifies the precise charges being levied, and provides a summary of the evidence upon which the charges are based. Too many private colleges send notices that are too vague to be useful. For example, a student accused of cheating by copying the answers of a student sitting next to him during an exam, might receive a notice stating he was accused of "intellectual dishonesty," and nothing more. Another student accused of plagiarism may not be notified of the source from which she allegedly plagiarized.

Many students have been disciplined for verbal or symbolic speech that struck some college administrator as offensive and therefore in violation of often vague "respectful speech" rules in student handbooks. Students charged with offensive speech rarely know in advance what speech might result in disciplinary charges. Whether or not charges are brought will often depend on the arbitrary happenstance of the subjective feelings of a fellow student or the political leanings of a faculty member or college administrator.

At the disciplinary hearing itself, few colleges allow attorneys to be present, and those that do, usually do not allow the attorney to address the tribunal. His only role is to occasionally advise his client. Lawyers are hardly ever allowed to present their clients' cases, even when suspension or expulsion may be the consequence of an adverse finding. If the hearing goes badly for the student, most student handbooks allow for some form of appeal within the university. In order for a right of appeal to have any meaning, however, the official or panel hearing the appeal must have a good idea of what transpired at the hearing itself. Yet, student handbooks rarely specify the detail with which the disciplinary panel or official must document the hearing proceedings – tape recordings are pretty much never allowed.

Faced with examples of unfairness, most courts simply look the other way (for a significant archive of college transgressions against students, and ongoing reports of unfairness on American college campuses, see the web site of FIRE, the Foundation for Individual Rights in Education). While they proclaim that proceedings must follow the promises made in student handbooks, and that the proceedings must be fundamentally fair, it is nearly impossible to find a case in which a court has reversed the disciplinary ruling of a private college on the grounds that the school ignored its own rules or acted unfairly, arbitrarily or capriciously. In other words, the real legal standard for private college disciplinary proceedings, as opposed to the pronounced standard, is "anything goes." An example of judicial "hands off" college disciplinary proceedings in Massachusetts is found in the case of Schaer v. Brandeis University, discussed in the article, Justice for College Students Denied at the Supreme Judicial Court, on this web site.

It is time that colleges be treated like the major businesses they have become. Society must impost upon them significant obligations of honesty, fairness, and contractual integrity in their dealings with students. Consumers who have paid tens of thousands of dollars and more, and who have placed their career futures in the hands of a private college, must be protected from being sanctioned, suspended or expelled unless they are given substantial procedural protections. Since the courts have declined to act, the Legislature must step forward. I would propose a statute in Massachusetts that would accomplish the following:

  1. Emulate California's Leonard Law, and provide students of private colleges licensed to operate in Massachusetts, the same rights to speech and other communication that are granted by the First Amendment to the United States Constitution.
  2. Require that in any serious disciplinary proceeding (defined as a proceeding that can result in suspension, expulsion, or a permanent negative entry on the student's college record), that the college must provide: (a) notice that contains a specific description of the charges and the section in the student handbook that are violated; (b) a description of the evidence upon which the charges are based;
  3. (c) a copy of any complaint or other correspondence conveying the information that resulted in the charges; (d) a list of all witnesses who will testify against the student; (e) a reasonable period of time in which to prepare a defense.
  4. Provide for the following rights at any serious disciplinary hearing: (a) the right to testify on one's own behalf; (b) the right to present witnesses; (c) the right to question adverse witnesses; (d) the right to have counsel present in the hearing room with the ability to advise the accused; (e) in hearings when criminal charges have been filed or are likely to be filed, the right to have the hearing conducted by counsel; (f) a recording, transcript, or detailed summary of what transpired at the hearing; and (g) a written decision describing the grounds for the decision and the evidence relied upon.
  5. Require that any decision resulting in suspension or expulsion must be based upon the "clear and convincing" evidentiary standard; (this provision might initiate a much-needed confrontation with the federal Department of Education – see, Government Mandated Injustice on American College Campuses, on this web site).
  6. Intentional violations of the statute or violations committed with reckles disregard or deliberate indifference to the law, would give rise to a civil action for damages.

The proposed statute would be named "The College Justice Act," because justice at private colleges is what the law would require. The powerful lobby of the private university industry could be expected to do all in its power to defeat a bill such as the one proposed here. Perhaps, though, a populist sense of justice would prevail. At a minimum, the effort to enact college justice legislation would shed light on the dark problem of injustice to students at private colleges.