What a College Disciplinary Process Should Look Like

©2015 Kenneth N. Margolin

Along with many commentators, including members of the academic community, I have criticized the college disciplinary process, particularly in cases that might result in suspension or expulsion. Procedural protections are simply too slender given the potentially life-altering stakes involved. In this article, I will suggest the elements that should be present in every college disciplinary proceeding in which a student might be suspended or expelled from the school. Although no state currently requires all or most of the elements I set forth, and only North Carolina, and North Dakota guarantee that counsel can participate in college disciplinary hearings, the push for greater protections for accused college students is just beginning.

Story after story of students wrongly accused and thrown out of their schools, is creating a growing recognition that depriving a student of a college education, which generally taints the student's transcript for life, should not be allowed absent a process that is truly fair and which grants the accused significant rights. Platitudes in opposition to fair college proceedings, such as "they are meant only to be educational," or "lawyers will turn college disciplinary hearings into contentious proceedings," or "colleges must be in complete control of who they wish to stay on campus" are increasingly recognized as nothing more than excuses for the wielding of arbitrary power. In a more enlightened not too distant future, I expect that state legislatures will mandate some or all of the rights proposed below.

    Notice to the accused student should be in writing, and should contain at a minimum, the following information: (1) a full description of the charges; (2) if known, the location, date(s) and approximate time(s) the alleged infractions are claimed to have occurred; (3) the identity of the complainant or complainants; (4) the identity of any alleged witnesses to the occurrence that gave rise to the charges; (5) the provision(s) of the college Student Handbook that will have been violated if the student is found responsible; (6) a description of the range of potential sanctions if the student is found responsible;(7) the options available to the student, such as accepting responsibility and requesting a sanctions hearing; requesting a hearing before an administrative official or a full disciplinary panel (if the student has a choice); (8) a statement that the student will be granted sufficient time before a hearing, to prepare his or her defense; (9) notice of the student's right to counsel throughout the process.

    Most college handbooks note that disciplinary charges are to be pursued promptly. While there is a reasonable basis for not allowing college conduct code cases to drag on, a la the sad state of litigation in the courts, there is no excuse for rushing a student to a hearing in a matter of days or even one or two weeks, if the complexity of the case, the student's health or class or exam schedules, or other legitimate reasons, suggest that more time is needed. Absent evidence that a student is abusing a request for additional time to prepare, it should generally be granted in serious cases.

    It is not enough to require a college to inform the accused student of the identity of potential witnesses against him, or to obligate the school to turn over to the student, all exculpatory evidence of which the college is aware; i.e., evidence that would suggest the student's innocence of the charges. The information should be provided to the student as soon as the college possesses it, or as soon as is practicable, and in any event, long enough before the hearing that the student can assess and make use of the information.

    While college disciplinary hearings are not and should not be the same as courtroom trials, when a student's education and future are on the line, they must be more than informal sessions with minimal rights granted to the student. In cases involving potential suspension or expulsion, the accused student should be granted the following rights:

    1. the ability to address the panel, both before the testimony is heard and after it is completed;
    2. the right to bring witnesses to testify on his behalf;
    3. the right to confront; i.e., cross-examine, both the complaining student and witnesses who testify against the accused;
    4. the right to present a written statement;
    5. the right to have an attorney present who can advise the student as is reasonably necessary, and in cases involving suspension or expulsion, the right for the attorney to address the panel at least after all the evidence has been heard, and preferably at the outset and again at the end of the hearing;
    6. a recording of the entire hearing, on good quality recording equipment, preferably digital, so that the hearing record can be uploaded as a digital sound file;
    7. if the student is found responsible for any or all of the charges, a written decision in which the reasons for the adverse decision are specifically set forth (for example, not a general statement that the panel found it more likely than not that the accused was responsible as charged, but an explanation of why the testimony of the complainant or defendant, or one or another witness was credited or disbelieved).

    When a student has been accused of rape or some other form of sexual assault, then all the rights set forth at paragraph 4 above, should apply, except that the student's attorney should be allowed to present the entire case for the accused, including opening and closing statements, and questioning and cross-examining witnesses. In my opinion, and in the opinion of many civil libertarians, colleges have no business adjudicating sexual assault cases. If they insist on doing so, they must recognize that the charge of rape, even if "only" in the context of a college disciplinary proceeding, is an accusation of a despicable act, and that a "responsible" finding can harm a young man for his entire life. Especially given the politically charged and politically correct biased environment prevailing in campus sexual assault cases, an accused student must be granted the right to an attorney who can represent him fully throughout the process, including during the hearing.
    The student rights I recommend in this article will not turn campus hearings into proceedings that are excessively adversarial or contentious. Rather, they will force on college officials a sobering and much needed reminder that when they consider whether a student will be suspended or expelled, they are not acting as mere educators, nor benign despots – they are engaging in a type of legal proceeding that can have a lifelong impact on students just beginning to make their own way in life. Strong procedural protections are not only fair, they are required if justice is to be done.