I am reprinting an excellent article from Texas attorney, Stephen Gustitus. In NC, we have so many universities and many disciplinary procedures.
University Discipline . . . The Illusion of Due Process
Thousands of students face campus discipline courts each year at both public and private universities. Penalties range from letters of reprimand to suspension or expulsion from school. For students with related criminal charges the campus disciplinary process carries added risk. The unwary student, without legal counsel, runs the risk of incriminating themselves by speaking freely with campus hearing officers. Beyond this, cases considered improvable by state prosecutors are routinely pursued by these campus courts . . . often with devastating results. This article details the issues involved in defending students accused of violating campus conduct codes. Note each institution has its own rules and procedures for student disciplinary matters. The attorney who serves as advisor must be familiar with both trial level procedures and those established for campus appeals. My experience is largely with Texas A&M University so I will use their system as a template for our discussion.
Students facing disciplinary action are entitled to a minimum level of constitutional due process, especially those attending public universities. This due process includes the right to have their case heard under established procedures, the right to receive notice of the charges, the right to hear a description of the evidence, and the right to present favorable evidence to an impartial fact-finder. See Goss v. Lopez, 419 U.S. 565 (1975). However, the rights we have come to rely upon in criminal court, like the right to confront one’s accuser, are noticeably absent from this established due process. The burden of proof is by a preponderance of evidence and the Rules of Evidence do not apply. In fact, hearsay is the standard by which the University typically meets their burden of proof. (We once defended a student where the University’s principle source of evidence was a newspaper article from The Bryan Eagle) Significantly, the student is not entitled to an advisor who is also a licensed attorney. If criminal charges are not pending the advisor cannot be an attorney. If an attorney does serve as advisor they are not permitted to “represent” the accused student. Rather, the advisor assists the student in presenting their case pro se. A very cumbersome system, to say the least. A qualified attorney can serve as advisor in appropriate cases.
One devastating aspect of the University discipline system is the “paper trail” it creates. This trail can follow a student into criminal court and beyond. The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a federal law protecting the privacy of student education records. FERPA also gives parents certain rights with respect to their child’s education records. Generally, schools must have written permission from the parent or student to release any information from the student’s education record. However, FERPA allows schools to disclose those records (the paper trail) without consent to the following parties or under the following conditions (34 CFR § 99.31): (1) School officials with legitimate educational interest; (2) Other schools to which a student is transferring; (3) Specified officials for audit or evaluation purposes; (4) Appropriate parties in connection with financial aid to a student; (5) Organizations conducting certain studies for or on behalf of the school; (6) Accrediting organizations; (7) To comply with a judicial order or lawfully issued subpoena; (8) Appropriate officials in cases of health and safety emergencies; and (9) State and local authorities within a juvenile justice system, pursuant to specific state law.
The first time a student learns they are subject to university discipline is upon receipt of the “charge letter” from Student Conflict Resolution Services. This letter propounds the alleged violations of the Student Conduct Code (SCC). The SCC is analogous to our penal code. If the student is also a member of the University Corp of Cadets the charge letter may contain alleged violations of “The Standard.” The charge letter first details the code section(s) allegedly violated. Then the factual allegation supporting the violation is described. The SCC is profoundly broader and more ambiguous than penal laws to which we are accustomed. For example, Section 24.4.4 of the SCC prohibits THEFT as follows: “Unauthorized removal or stealing and/or attempted removal or stealing of property of a member of the University community or other personal or public property, on or off campus.” Note a culpable mental state is conspicuously absent. You will not find one in the University charge letter either. In fact, the University is not required to prove any intent before finding a student responsible for theft under the Student Conduct Code. In several disciplinary hearings we have defended our client would have prevailed had the University been required to prove knowledge or intent. Additionally, we have found the University tends to interpret code sections very broadly and adversely to the accused student.
One deceptive feature of the charge letter is its invitation for the accused to incriminate themselves during the disciplinary hearing (Student Life Conduct Conference). In each Texas A&M charge letter the student finds the following invitation: “The purpose of the Student Life Conduct Conference is to allow you to present your perspective of the events which led to the charges listed above and to determine what action, if any, will be taken in reference to these charges by the University.” A similar offer is presented when the student attends the actual hearing. If the student faces potential criminal charges stemming from the University allegations, encouraging the student to “present their perspective” is an opportunity for self-incrimination. Since FERPA does not protect student files from “judicial orders or lawfully issued subpoenas,” the uninformed student may spend hours incriminating themselves. Our local district attorney has never hesitated to issue a subpoena and obtain these records. Lastly, the student must respond to allegations in the charge letter. Failing to respond is a violation of the Student Conduct Code, as well.
Prior to a Student Life Conduct Conference we do not hesitate to discuss evidentiary matters with the hearing officer. Rather than get surprised when evidence is not admitted, we discuss questionable issues before hand. Our discussion provides an opportunity to champion our client’s position and provides the hearing officer some time to sleep on evidentiary matters.
Hearings are either informal or formal. Informal hearings are one-on-one meetings with a hearing officer. They do not involve potential suspension/expulsion of the student. Informal hearings are typically not recorded. Formal hearings, conversely, are recorded and consist of a three (3) person panel of fact-finders, a panel chair (judge), and a student conduct administrator (prosecutor). The student risks separation from the University during formal hearings. Prior to the start of each conference the student is required to accept, or not accept, responsibility for each allegation listed in the charge letter. This “plea” is recorded in writing inside the student’s file.
Again, the Rules of Evidence do not apply to the conference process. In fact, hearsay is the evidence most likely encountered at a University disciplinary hearing. Furthermore, there is no right to confrontation even when possible separation is a sanction. The Roles and Responsibilities of Panel Conference Participants published by the University states: “An alleged complainant may be interviewed during the investigation process and may provide written statements regarding the alleged conduct. An alleged complainant is not required to be present during the panel process.” (Emphasis added) Of equal concern is the lack of opportunity to compel witnesses to attend hearings and testify. If a witness does not wish to appear, they do not appear and no mechanism exists to compel their testimony.
Remarkably, there is no “voir dire” of the fact-finding panel who decides responsibility and sanctions. In other words, there is no vehicle through which to inquire about potential bias of the persons about to forever affect the student’s life. Identifying bias is simply impossible in this system. In fact, our experience reveals the fact-finders are often quite biased in favor of the University. All are employed by the University and have an inherent interest in protecting the University community. Similarly, in Corp of Cadet matters there is a military advisor from the Corp who serves as a fact-finder. The officer’s duty is to protect the Corp of Cadets and this inherent bias is often reflected in decisions we have seen. It’s profoundly unfair to the accused student.
Lastly, even though the accused student is afforded the right to silence, in formal hearings students are repeatedly asked questions and are forced to continually invoke their right. It makes them look guilty as hell. Equally abhorrent is the potential a student’s silence will be used against them. Section 26.1.4 of the Student Conduct Proceedings published by the University states: “There will be no finding of responsibility solely because a student remains silent during a student conduct conference.” (Emphasis added) On the rule’s face a student’s silence can be used as evidence of responsibility. You can see this on panel member’s faces after the student was compelled to invoke their right to silence over and over again during the hearing process.
One or more sanctions may be imposed for any single Student Conduct Code violation. The most serious sanctions are separation from the University via suspension or expulsion. Lower level sanctions may include the rare letter of reprimand. More common is conduct review or conduct probation. Conduct probation at Texas A&M University removes the student from good standing and prohibits them from: (1) holding office in a University organization; and (2) representing the University in any official capacity. The student on conduct probation is also ineligible to receive a University administered scholarship. A full understanding of possible sanctions involves an in-depth study of published University materials on this subject.
The appeal process is limited in scope. The same bias towards “finality” we are accustomed to in criminal appeals is evident in the University disciplinary appeal process. The appealing student must complete an appeal request form within five (5) University business days of the decision regarding disciplinary action. The following are the only accepted bases for appeal: (1) Failure to adhere to the published guidelines regarding the fairness of the hearing process in light of the charges and evidence presented; (2) Whether a sanction imposed was appropriate for the violation of the Student Conduct Code for which the student was found responsible; and (3) To consider new information, not available at the time of the original conference, sufficient to alter the hearing decision. Again, the appeal process is intended to be informal and “need not comply with the formal processes associated with the criminal and civil courts.” Section 58.4 published in the University Disciplinary Appeals Panel. The appeal process is not intended as a de novo appeal, but sometimes works out like one. Also, the University may rule on the appeal without a hearing if it determines the stated grounds are meritless.
The due process afforded students in University disciplinary hearings is a far cry from what we are accustomed when defending citizens in the criminal justice system. The University frowns upon us comparing their system to the criminal and civil courts even though the long-term consequences of being found responsible for violating the SCC are profound. Further, the University’s stated policy behind the disciplinary process emphasizes the “educational” value to the student. The Student Conduct Code Procedures published by the University states: “The University views the student conduct system as an educational experience that can result in growth in personal understanding of one’s responsibilities and privileges in the University community.” This educational value may be true in some cases, but the punitive consequences to the student can be as profound as any criminal court sentence. This is especially true in more serious cases where responsibility for sexual abuse, violence, or weapons is determined.