Lawlessness on Campus

©2015 Kenneth N. Margolin

A plague of lawlessness has overtaken American college campuses. In classrooms, cafeterias, lecture halls, gymnasiums, student centers, and canopied walkways, students who think independently and speak freely, risk having their education and reputations stolen from them with little provocation. The outlaws are not intruders or common criminals. They are college officials disciplining students alleged to have violated the college code of conduct, employing procedures that can only be described as lawless. The injustice that occurs in many college disciplinary proceedings, is appalling.

Typically, a student receives a cursory notice of the charges against him or her, rarely detailing such critically important details as time, place, and details of the alleged offense, or the identity of alleged witnesses. The inadequate notice is often followed by a mandatory pre-hearing meeting with a college official. At that meeting, the student may be asked leading or careless questions, and not understanding the rules or the stakes, may give careless answers subject to misinterpretation. At disciplinary hearings, students are rarely allowed to be accompanied by counsel. A student thus faces alone, with no legal training, no skilled advisor (professor-advisors often do more harm than good), no understanding of how to present or challenge evidence, or how to question witnesses, an inquiry that may result in suspension or expulsion, and a permanent stain on their record.

There is something fundamentally wrong with a system that allows well-funded corporations – that is what colleges are – often headed by an executive earning seven figure income, to destroy the dreams, and harm the finances, of one of the corporation's consumers – the student – with flimsy procedural protections. How can we allow students, who may have paid or incurred debt of $150,000 or more for a college education, fewer rights than a consumer who buys a washing machine? Unfortunately, the courts have been overly deferential to colleges, and disinclined to require adequate protections as a matter of public policy.

While not a panacea, a mandate that a college charging a student with disciplinary violations that might result in suspension or expulsion, must advise the student of his right to consult with an attorney, and his right to have the attorney accompany him to any interview or hearing, would go a long way toward bringing some balance to the college disciplinary process. Lawyers, at the core and in the best sense of their profession, represent the justice system as well as their clients.

The legal profession has been at the forefront of advocacy for the civil rights of racial minorities, homosexuals, women, and the downtrodden and despised of society. Yet, nearly every college student handbook bans lawyers from accompanying students during the disciplinary process. One handbook I encountered while representing a student, not only prohibits lawyers from disciplinary hearings, but states that an advisor accompanying a student, "may not have formal legal training." Think of the message broadcast by such provisions – "we do not want our hearings, at which we may dispense severe punishment, tainted by the presence of anyone trained in concepts of evidence, legal principles, or procedural fairness." I had thought that such inquisitorial proceedings in western democracies, disappeared with the Age of Enlightenment.

The problem of unfairness in college disciplinary matters, is widespread, yet little publicized. Consumers of Massachusetts higher education services deserve more justice than they now receive. Requiring colleges to advise students facing serious charges, in the very first notice, of their right to consult counsel, would impress upon students, the seriousness of the matter facing them. The attendance of attorneys at interviews and hearings, even if they are not permitted to actively participate, will impose a needed degree of oversight to a process that has become unfair and oppressive.

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