Retain Counsel before your College Disciplinary Hearing

Since I began representing college students charged with serious violations of their school's code of conduct, a number of students or their parents have contacted me after the hearing, after a negative decision with harsh consequences was handed down by the college. These clients wanted me to handle the internal appeal, which is usually decided by the College President or his designee. While all is not inevitably lost if the hearing decision goes badly, winning on appeal is always an uphill battle. The hearing decision will usually be overturned or modified, only if a significant procedural error can be identified, or new material evidence discovered, that was not known the time of the hearing. I have been able to help some students who came to me belatedly, to appeal from an adverse conduct code hearing. There have been other students, however, clients I believe I could have helped prevail at their hearing, who I had to advise that they would almost certainly lose their appeal.

Before a disciplinary hearing is held, counsel can help an accused student decide whether or not to contest the charges. If the decision is to accept responsibility, counsel can prepare the best possible case for a lenient sanction. With an attorney experienced in representing students accused of college disciplinary code violations, the student can make a realistic assessment of whether the charges against him or her can be successfully contested. Once the decision has been made to plead "not responsible," the attorney will work with the student to make a focused, logical, and strong hearing presentation. Even the most intelligent and organized students will usually struggle to understand what evidence to present, how to organize their presentation, what to emphasize and what to avoid.

A potent opening is no less important for a student attempting to persuade the Conduct Code Board, than for an attorney addressing a judge or jury at the start of a trial. College officials often patronize accused students by suggesting that the hearing is simply a part of the student's education, and that nothing more is needed than for the student to appear and be honest. The fact is, however, that an accused student must treat the hearing with the same seriousness as he would a trial in criminal court. Ironically, though the procedural protections in a criminal case are immeasurably greater than in all college disciplinary hearings, the consequences of conviction for a minor to modest crime may be less than being found "responsible" for a serious violation of the college Code of Conduct.

While the student's attorney can rarely attend the hearing with him – an injustice that should be corrected by the Legislature – a student represented by counsel will make a much more persuasive case than one who is trying to navigate the process alone, or with the help of a professor-advisor, who is employed by the very college that has charged the student with wrongdoing. If the college is denying the student procedural rights promised in the Student Handbook, an experienced attorney can help insure that the student's procedural rights,though inadequate, are at least respected.

As mentioned, there may be hope on appeal if the hearing has been lost. An attorney is trained to look for procedural errors. The student will be asked to describe in detail his interactions with the College, from the first notice of the charges, to the decision letter, the purpose being to compare what was promised the student with what was granted. On occasion, an attorney may help a student locate new evidence, material to the case, that the student had not discovered before the hearing. When a college is respectful enough of the importance of a serious hearing, to make a tape recording, counsel will listen to the tape, to analyze both the procedures and the evidence, to assess the fairness of the hearing, and whether the evidence could support a "responsible" finding by any reasonable Conduct Board. Once the pre-hearing and hearing process have been analyzed, the attorney will draft the Appeal.

Better late than never will apply to some cases in which a student pursued the hearing without counsel, lost, and seeks counsel to prepare an appeal. Given the limited scope of appeals in most colleges, however, retaining an attorney as soon as the student learns of the charges will give the best chance of achieving the most successful outcome that is reasonably possible.

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