The Fallacious Reasons Colleges Give For Unfair Procedures In Disciplinary Proceedings
College students who have incurred tens of thousands of dollars in debt, or whose tuition has been paid by their families at great cost, are entitled to reasonable procedural protections before they can be suspended or expelled from their schools. This article will first describe the minimal procedural rights necessary for fairness in cases that might result in suspension or expulsion – procedural unfairness is less damaging in cases involving minor rules infractions – describe the arguments colleges often give to justify unfair disciplinary hearings, and explain why those reasons have no merit.The basic requirements of a fair hearing
The purpose of fair procedures are to minimize the chance of erroneous decisions. In order to be fair, procedures must guarantee to a college student accused of violating the school's code of conduct, the means to understand the charges against him or her, and to present a legitimate defense. Before a student can be suspended or expelled, and suffer not only the loss of his investment, but harm to his reputation and future, fair process should contain the following rights at a bare minimum (the terms "fair process" is used here instead of "due process," as "due process" is a constitutional term, applicable only to public colleges – any institution that conducts business in our states should be required to treat its student-consumers with basic fairness):
- Notice of the charges against a student that are sufficiently detailed so that the student can truly understand them. Too often charge letters merely parrot sections of the disciplinary code, leaving the student to guess at what the college believes he has done wrong.
- A description of the evidence supporting the charges. Colleges do not universally provide a description of the evidence underlying a charge. Without knowledge of the evidence against him, a student cannot prepare an adequate defense.
- The right to present witnesses. Most colleges do permit such a right. Any that do not, are not holding fair hearings.
- The ability to question adverse witnesses, including a complainant. Many, if not most students, will not be adept at questioning a witness – cross-examination is a skill that eludes even many attorneys. Nevertheless, the ability to challenge an adverse witness's story is fundamental to a fair hearing. The issue is particularly sensitive when sexual assault is alleged. Some "victims' advocates" claim that allowing a student – almost always male – to confront a female student he allegedly assaulted, may be too traumatic for the woman. That notion, however, assumes that the charges are true. If an accused student denies that a sexual assault occurred, usually based on an insistence that sex was consensual, to forbid questioning of the witness denies a foundation of procedural fairness.
- The right to have an attorney present in the hearing room for the purpose of advice and consultation during key points in the hearing. The right to the presence of counsel in the hearing room for advice and consultation (not to present the case), even when suspension or expulsion may result – is denied by most colleges, both public and private. Moreover, state and federal courts have not seen fit to require the right, even in the cases of constitutionally bound public colleges. Legislation would be required to mandate the right.
We need to maintain order in our classrooms and dormitories and on our campuses, so must be able to control the procedural rights we grant.
College officials always maintain the right to summarily exclude students who are actively disrupting classrooms, dormitories or campuses. Providing fair disciplinary hearings would have no impact on the ability of colleges to maintain order and control, unless officials believe that their right to maintain order includes the right to punish students who have done nothing wrong.
Disciplinary proceedings are an educational experience for our students, not a legal matter. A primary purpose is to teach them to be better citizens in college and in society.
A proceeding that threatens an individual with the loss of tens of thousands of dollars, his reputation, and employment and economic future, can and must involve consideration of legal principles. Presumably, college officials do not intend their disciplinary hearings to be object lessons on how unjust life can be. The only way to make sure that serious disciplinary proceedings teach notions of justice, morality and good citizenship, is for every hearing to be a fairly run search for the truth, with the harsh consequences of an erroneous judgment taken heavily into account.
Providing too much process would be expensive and time-consuming.
The modest procedural protections required for a fair hearing should cost no more than would conducting an unfair hearing. While it is true that a hearing at which the accused student can present witnesses, and question adverse witnesses, may take longer than a more summary hearing, the extra time would not be extraordinary. We are not talking of multi-day trials here. There is no excuse for magnifying the risk of suspending or expelling an innocent student, because of the desire to save a little time.
Attorneys are contentious and legalistic, and have no place in college disciplinary hearing rooms.
The adverse consequences of a permanent record of wrongdoing at college, and suspension or expulsion, may be far greater than conviction of many crimes. It is unfair to deprive the student faced with such a potentially devastating result, of legal counsel in the hearing room. Fear, confusion, difficulty with self-expression, or other factors, may compromise a student's ability to tell his story, let alone cross-examine an adverse witness. Accompaniment by counsel, who may only advise and consult and not address the hearing panel, is at worst, a minor inconvenience for the panel, yet an enormous aid to the student. College officials will always retain the right to ask an attorney who is violating the rules or behaving disrespectfully, to leave. When seen in light of the terrible harm done by losing one's investment, education, and a portion of one's future, the right to counsel is essential.
It is disappointing that so many of our institutions of higher learning insist on the right to hold disciplinary hearings that are fundamentally unfair. As inheritors of the traditions of Plato, we should expect that college officials would worry more about fairness than efficiency and a false sense of control. None of the arguments raised in favor of minimizing rights in the most serious disciplinary cases, ring true. Even if they did, they would be trumped by the moral obligation to do justice.