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Student Affairs Committee
(Code of Conduct Article)
31 JCUL 1
31 J.C. & U.L. 1
(Cite as: 31 J.C. & U.L. 1)
<C>
Journal of College and University Law 2004
Article
*1 NAVIGATING PAST THE "SPIRIT OF INSUBORDINATION": A
TWENTY-FIRST CENTURY
MODEL STUDENT CONDUCT CODE WITH A MODEL HEARING SCRIPT
[FNa1]
Edward N. Stoner II [FNaa1]
John Wesley Lowery [FNaaa1]
Copyright Copr. 2004 by National Association of College and
University
Attorneys;
Edward N. Stoner II, John Wesley Lowery
"The article of discipline is the most difficult in
American education.
Premature ideas of independence, too little repressed by
parents, beget a
spirit of insubordination, which is the greatest obstacle to
science with
us, and a principal cause of its decay since the revolution.
I look to it
with dismay in our institution, as a breaker ahead, which I
am far from
being confident we shall be able to weather."
--Thomas Jefferson [FN1]
*2 "[Higher] education deserves the highest respect and
the fullest
protection of the courts in the performance of its lawful
mission .... If
it is true, as it well may be, that man is in a race between
education and
catastrophe, it is imperative that educational institutions
not be limited
in the performance of their lawful missions by unwarranted
judicial
interference."
--U.S. District Judges Becker, Oliver, Collinson,
and Hunter sitting en banc [FN2]
"[S]chool regulations are not to be measured by the
standards which
prevail for criminal law and for criminal procedure."
--Harry A. Blackmun, then, Eighth Circuit judge, later,
Associate Justice of the U.S. Supreme Court [FN3]
Since the era when Thomas Jefferson wrote to Mr. Cooper, [FN4]
higher
education administrators have struggled with the task of
responding to the
spirit of insubordination of college and university students in
ways that were
not only developmentally sound but that also were effective to
create an
environment in which all members of the academic community could
live, work,
and learn together.
In recent years, the job has been complicated by the need to
avoid judicial
interference with the efforts of professional educators to guide
the academic
community. Some, even after Justice Blackmun's admonition not to
do so,
continue to analyze student conduct codes as if they were
parsing a criminal
code. As a result, commentators concerned that the moral and
intellectual
development of students not be lost observe, with concern, that:
"Student
affairs is at a crossroads. Contemporary administration of
higher education
often reflects a litigious and legalistic society on a collision
course with
developmental approaches to college and university
administration. Student
affairs should stand at the center of that intersection." [FN5]
Thus, today, it remains as important as ever that college and
university
administrators continue to guide students through their era of
development on
*3 campus. Just as in Mr. Jefferson's day, the issue of
discipline remains the
most difficult in American higher education, for both the
students and for the
academy itself. It also remains the most important. As Supreme
Court Justice
Hugo Black once observed, "School discipline, like parental
discipline, is an
integral important part of training our children to be good
citizens--to be
better citizens." [FN6]
It is not an easy task. This new model code, however, is an
attempt to aid the
practitioner not only in navigating past the shoals of the
spirit of
insubordination but also in weathering the breakers of judicial
processes
followed by courts.
In contemplating how to provide a good living/learning
environment for college
and university students, our instincts today are the same as Mr.
Jefferson's.
When some students rioted on the early nineteenth century
University of
Virginia Lawn, Mr. Jefferson wrote that "we wished to trust very
much to the
discretion of the students themselves for their own government.
With about
four-fifths of them this did well, but there were about fifteen
or twenty bad
subjects who were disposed to try whether our indulgence was
without limit."
[FN7] From this experience, Mr. Jefferson learned one lesson
that all college
and university administrators know: we cannot hope that all
students will
behave themselves simply because they are adults.
Since then, generations of higher education administrators have
tried both to
give educational leadership to those wishing to develop into
good citizens
and, at the same time, to respond appropriately to aberrant
behavior that
damages the living/learning environment on campus, even if the
unwanted
behavior is prompted by the "spirit of insubordination." [FN8]
*4 Working toward these goals, college and university
administrators strive to
provide a living/learning environment with standards far
exceeding the law of
the streets regulated by the criminal law. [FN9] This factor
alone illustrates
why, as then-Judge Blackmun wrote in Esteban v. Central Missouri
State
College, [FN10] criminal *5 codes are not good models for
student conduct
codes. [FN11] Unlike society, our institutions are voluntary
associations of
scholars who demand and deserve a positive--and special--
living/learning
environment, as well as a special approach for enforcing the
academic
community's standards. This perspective is a common one. [FN12]
As the judges
of the United States District Court for the Western District of
Missouri,
sitting en banc, stated:
Attendance at a tax supported educational institution of
higher learning
is not compulsory. The federal constitution protects the
equality of
opportunity of all qualified persons to attend. Whether this
protected
opportunity be called a qualified "right" or "privilege" is
unimportant. It
is optional and voluntary.
The voluntary attendance of a student in such institution
is a voluntary
entrance into the academic community. By such voluntary
entrance, the
student voluntarily assumes obligations of performance and
behavior
reasonably imposed by the institution of choice relevant to
its lawful
missions, processes, and functions. These obligations are
generally much
higher than those imposed on all citizens by the civil and
criminal law. So
long as there is no invidious discrimination, no deprival of
due process,
no abridgement of a right protected in the circumstances, and
no
capricious, clearly unreasonable or unlawful action employed,
the
institution may discipline students to secure compliance with
these higher
obligations as a teaching method or to sever the student from
the academic
community. [FN13]
Accordingly, colleges and universities also desire to use a
student discipline
process that, itself, will help to educate students about
their
responsibilities as members of an academic community and to
impose educational
sanctions when student conduct is beyond the limit of the
community's
indulgence. [FN14]
*6 Our effort, in 1990, to set forth some of this guidance in
our first model
student conduct code reflected evolution in the legal cases and
began to
explain three trends that are more obvious today. [FN15]
There is, first, continuing deference by the judiciary to
efforts by educators
when they are exercising their educational judgment, [FN16]
including when
they are dealing with student misconduct. For example, the
Massachusetts
Superior Court recently explained: "Courts are generally
reluctant about
second-guessing academic and disciplinary decisions made by
private schools.
This deference derives from a commendable respect for the
independence of
private educational institutions and a well-justified
laissez-faire attitude
toward the internal affairs of such institutions." [FN17]
Likewise, the
Arkansas Court of Appeals has been "reluctant to allow the
judiciary to
encroach upon disciplinary proceedings of an educational
institution." [FN18]
Second, the judiciary understands that, as Justice Blackmun
observed, [FN19]
courtroom procedures including rules of evidence and numerous
criminal law *7
principles not only do not control the efforts of educators to
deal with
student rule violators but also they are bad models for
achieving a positive
college or university environment for studying and learning. As
the Missouri
federal judges explained, "Standards so established [on campus]
may require
scholastic attainments higher than the average of the population
and may
require superior ethical and moral behavior. In establishing
standards of
behavior, the institution is not limited to the standards or the
forms of
criminal laws." [FN20]
Third, there is evolving recognition that educational models
need to be
applied when fact finding occurs in the student conduct arena.
Accepting the
wisdom of jurists that criminal principles are the wrong model,
professional
educators are challenged to create a fact finding atmosphere
designed to
reflect the values of the academic community itself. [FN21]
These trends did not happen in a vacuum. Since the publication
of our first
model student conduct code, nearly a generation of college and
university
students and administrators has passed through our institutions.
Students have
developed new ways to display their spirit of insubordination:
[FN22] from
rioting because their school's athletics team won or lost some
now forgotten
"important" sporting event, [FN23] to abusing drugs not even
invented in the
century now passed. At the *8 same time, administrators have
developed student
conduct codes that fit the unique environment of their campuses
[FN24] and
that respond to the needs of their students--such as responding
to sexual
violence--in order to address issues that profoundly impact the
living and
learning environment.
As this process has developed on campus, judicial treatment of
the legal
relationship between a college or university and its students
has not fit
neatly within one legal doctrine. [FN25] During the first part
of the
twentieth century, the concept of in loco parentis [FN26]
predominated. Under
this doctrine, courts viewed institutions as standing in the
place of
students' parents. Courts tended to give colleges and
universities a great
deal of discretion when they viewed the institutions as standing
in loco
parentis to the students. [FN27]
During the 1960s, however, courts began to move away from the
concept of in
loco parentis. Instead, courts viewed the relationship between
students and
institutions as contractual. Under this view, institutions enter
into
contracts with their students to provide them with educational
services in
exchange for students' paying certain fees and obeying certain
rules. [FN28]
In addition, beginning with the *9 landmark case of Dixon v.
Alabama Board of
Education, [FN29] in 1961, courts have required public
institutions of higher
learning to afford students minimal procedural due process
[FN30] before
taking disciplinary action. [FN31]
*10 Although twenty-first century courts no longer merely
rubber-stamp college
or university decisions, as they once may have done under the
doctrine of in
loco parentis, courts continue to afford institutions of higher
education a
great deal of discretion. [FN32] Nevertheless, when colleges and
universities
do specify the process they will follow for student discipline,
courts expect
them to follow the process they select. [FN33] Because
institutions will be
held by judicial reviewers to comply *11 with their own choices
about process,
language must be selected carefully. There must not be a
commitment--even a
vague one--to observe murky general "legal sounding" ideals like
"due process"
or "fundamental fairness." [FN34] A better practice is to state
exactly what
process is provided without using such platitudes.
In this environment, it is now normal practice for colleges and
universities
to have written student disciplinary codes. Such a written code
is one step
toward educating students about how to behave appropriately as
members of an
academic community. [FN35] The process of drafting or
re-drafting a student
conduct code [FN36] allows members of the academic community to
evaluate what
choices they believe are educationally appropriate--away from
the heat of a
specific incident. It may also provide a bulwark against charges
of arbitrary
action; for example, allegations that the school singled out one
student for
particularly unfair treatment or applied processes or sanctions
that were
inconsistent from case to case. This consideration applies to
private
institutions, as well as public ones even though the
constitutional concepts
of minimal procedural due process apply only to public
institutions. [FN37]
Thus, a written student code can benefit both public and private
institutions,
as *12 well as students. [FN38]
What follows is a model student conduct code that college or
university
counsel and administrators may use in creating or revising their
own written
student disciplinary code. Of course, decisions with regard to
certain topics
will depend upon the preference of each individual college or
university. Such
topics include choosing a person at the institution to
administer student
conduct code policies and procedures, establishing a minimum
amount of notice
of the alleged violation, setting a maximum period between the
time students
are notified of charges against them and the day on which those
charges are
heard, and deciding who will determine responsibility and
sanctions.
Nevertheless, the following model is a sound beginning upon
which to build a
student disciplinary code.
College or university counsel and administrators may wish to
keep a few
principles in mind when drafting their own student disciplinary
codes. [FN39]
First, the institution, whether public or private, should try to
follow the
general requirements of minimal procedural due process. As the
Supreme Court
has indicated, these requirements vary, depending upon the
circumstances, but
do, at least, require some kind of notice and some kind of
hearing. [FN40] If
an institution is public, it is required to grant minimal
procedural due
process. [FN41] If the institution is *13 private, such
constitutional minimal
procedural due process is not required, [FN42] but the
institution's actions
may appear more fair and more reasonable both to a court and to
campus
constituencies if it gives students the minimal procedural due
process that
would apply at a public institution.
As the Dixon court explained, the minimal procedural due process
that public
institutions are required to provide is, indeed, minimal. The
Indiana Court of
Appeals gave a typical contemporary description:
When a sanction is imposed for disciplinary reasons, the
fundamental
requirements of due process are notice and an opportunity for
a hearing
appropriate to the nature of the case. In order to be fair in
the due
process sense, the hearing must afford the person adversely
affected the
opportunity to respond, explain, and defend. For school
expulsion, due
process requires an informal give-and-take between the
student and the
disciplinarian, where the student is given an opportunity to
explain his
version of the facts. Due process further requires that a
university base
an expulsion on substantial evidence. [FN43]
Second, then-Judge Blackmun's observation that college and
university conduct
codes need not be "measured by the standards which prevail for
the criminal
law and for criminal procedure" [FN44] remains as accurate today
as when he
wrote those words two generations ago. The Missouri federal
judges made the
same point. [FN45]
There is no general requirement that procedural due process
in student
disciplinary cases provide for legal representations, a public
hearing,
confrontation and cross-examination of witnesses, warnings about
privileges,
self-incrimination, application of principles of former or
double jeopardy,
[FN46] compulsory production of *14 witnesses, or any of the
remaining
features of federal criminal jurisprudence.
Thus, student disciplinary codes need not be drafted with the
specificity of
criminal statutes. [FN47] Nor do technical judicial hearing
rules, like rules
of evidence, apply on campus. The Supreme Court of Massachusetts
recently
joined others in emphasizing that student conduct code
proceedings need not
mirror courtroom proceedings. It approved a provision from the
Brandeis
University rules that stated, "[A]t a disciplinary hearing, '[t]he
technical
rules of evidence applicable to civil and criminal cases shall
not apply."'
[FN48] A sentence like this one must appear in every
well-drafted twenty-first
century student conduct code. [FN49]
Similarly, in order to avoid implying that it expects its
student code to be
treated like a criminal statute, a college or university should
avoid criminal
law *15 language. [FN50]
The cardinal error of this type is the practice of calling
student discipline
proceedings "judicial." This misnomer is unfortunate because
rulings from
members of the real judiciary have consistently held, when so
urged by college
and university officials, that campus proceedings are not
"judicial"
proceedings. Much confusion has been caused by calling the
campus process a
"judicial" one when it is not. Frequently, a college or
university attorney's
explanation that judicial structures and technical judicial
rules are not
applicable on campuses has been derailed by a judge's
observation that, "The
College itself calls it a 'judicial' process." Luckily, most
such derailments
have been only temporary. The use of the term "judicial" may
also contribute
to similar confusion of elected officials and to the development
of confusing
legislation based upon a misunderstanding of the purpose and
role of campus
conduct codes. For these reasons, a sound twenty-first century
student conduct
code should eschew the word "judicial."
While college and university rules should not use the wording of
criminal
statutes and are not required to be as specific as a criminal
code, a student
conduct code should be sufficiently specific to make the rules
clear. [FN51]
Third, whatever process it adopts, the institution will want to
remember the
basic student affairs precept that it is important to treat all
students with
equal care, concern, honor, fairness, and dignity. For example,
in
student-on-student violence cases, the rights of the accused
student, the
student claiming to be the victim, and the academic community
are equally
important. It is helpful to judge potential process choices
against this
filter. The student who claims s/he is the victim of campus
violence has the
same rights to fair treatment as does the student accused of
violating campus
rules--and these expectations of both students spring from the
same source:
their honored status as students.
Fourth, student code drafters should be aware that, as in any
generic
document, *16 the principles set forth in the model student code
represent the
generally prevailing law and practice. In some instances, courts
disagree. In
others, administrators hold opposing views. In many cases, the
model either
offers the drafters alternative choices or advocates the
position taken by the
majority of courts or institutions, while noting that the
position taken is
not unanimously held. As with any form document, college or
university counsel
should review case law in his or her own jurisdiction to ensure
that the
institution is not bound by opposing precedent.
Finally, although such a section is not included in this model
student code,
the college or university may wish to emphasize, in addition to
its
prohibitions, rights that it recognizes. This can be included in
a preamble to
the student code [FN52] or in the college or university
handbook. [FN53] The
institution thereby assures its students that it does not intend
to take away
rights, but intends merely to control action going beyond, as
Mr. Jefferson
put it, "whether our indulgence was without limit." [FN54] The
institution can
thus help to insulate itself from criticisms that the student
code takes away
some constitutional right.
The following model student code is organized so that all
concerned--
students, administrators and faculty members--can understand the
concepts
embodied therein. It progresses from a general definition
section to a section
outlining the authority of the institution's student conduct
bodies, a
description of standards of conduct covered by the code, an
outline of the
procedures for bringing charges, holding hearings and deciding
appeals and,
finally, a section on interpretation and revision of the code.
The commentary
following various provisions sets forth not only the practical
reason for
including each section within the code, but also the legal
support for each
provision and, in some cases, suggestions on how the college or
university
official could approach certain situations.
The model student conduct code is followed by a model Student
Conduct Board
Hearing script. This script follows the model student conduct
code and
illustrates how a Student Conduct Board Hearing can be conducted
effectively
and in compliance with the dictates of minimal procedural due
process, without
using criminal law or courtroom models. Instead, the board chair
runs the
meeting of a committee--of which there are many in higher
education--whose
charge is to determine what the student did and to recommend the
type of
sanction that might be imposed if the student's conduct violated
institutional
rules. The model and the atmosphere are educational, not
adversarial.
Throughout the model code and script appear detailed discussions
of thorny
issues. For example, there is a discussion of the legal points
to consider
when a student who believes s/he was victimized by another
student does not
want to *17 confront her/his alleged attacker in an
institutional process.
[FN55] What options may we consider? A physical screen? Remote
testimony by
television? Another section proposes an educational solution to
a problem
created on some campuses: reporting process results to alleged
student
victims. [FN56] In these, as in many other issues, the answer
fortunately lies
in our educational leaders exercising their education judgment
to the
advantage of both their students and the entire academic
community.
As we noted in our first model student conduct code, even the
adoption of a
sound student code, applied with compassionate educational
judgment, will not
eliminate the "spirit of insubordination" that Thomas Jefferson
saw as such a
significant problem for higher education nearly two centuries
ago. [FN57]
For this reason, the captains who navigate our ships of higher
education know
that the calm waters of consistently proper student behavior are
unlikely ever
to be reached. Instead, as Mr. Jefferson once feared, the
challenges of
student discipline are likely always to loom as breakers ahead.
Nevertheless,
a sound student code following this model, like a sound ship
under a sailing
captain of old, will enable college and university
administrators to navigate
confidently past the dangers of the spirit of insubordination,
even when those
dangers are accompanied, as they often are, by storm clouds of
public concern
and lightning bolts of campus unrest.
With luck, twenty-first century navigators of the spirit of
insubordination
will be as successful as Mr. Jefferson was. After responding to
the University
of Virginia riots by expelling four students, [FN58] submitting
the matter to
a criminal grand jury, and reprimanding the rest of the students
involved, he
wrote to Ellen Wayles Randolph Coolidge on November 14, 1825:
[The imposition of student discipline] determined the
well-disposed
among them to frown upon everything of the kind hereafter,
and the
ill-disposed returned to order from fear, if not from better
motives. A
perfect subordination has succeeded, entire respect towards
the professors,
and industry, order, and quiet the most exemplary, has
prevailed ever
since. Every one is sensible of the strength which the
institution has
derived from what appeared at first to threaten its
foundation. We have no
further fear of any thing of the kind from the present set,
but as at the
next term their numbers will be more than doubled by the
accession of an
additional band, as unbroken as these were, we mean to be
prepared ....
[FN59]
*18 A TWENTY-FIRST CENTURY MODEL STUDENT CONDUCT
CODE
PREAMBLE
Commentary. A preamble could precede Article I reflecting the
institution's
mission, the principles that its faculty, students, and
administrators value,
and the community's commitment to establishing a special
living/learning
environment--all of which are intended to be reflected in the
Student Conduct
Code. These statements may, and do, take many forms and are
worth the effort
required to create one that reflects the culture of the
institution. [FN60]
ARTICLE I: DEFINITIONS [FN61]
1. The term [College] [University] means [name of
institution].
2. The term "student" includes all persons taking courses
at the
[College] [University], either full-time or part-time,
pursuing
undergraduate, graduate, or professional studies. Persons who
withdraw
after allegedly violating the *19 Student Code, who are not
officially
enrolled for a particular term but who have a continuing
relationship with
the [College] [University] or who have been notified of their
acceptance
for admission are considered "students" as are persons who
are living in
[College] [University] residence halls, although not enrolled
in this
institution. This Student Code [does][does not] apply at all
locations of
the [College][University], including the campus in [e.g., a
foreign country
or another state].
Commentary. This definition is intended to include persons not
enrolled for a
particular term but who were considered "students" when the
conduct at issue
occurred and could otherwise return. Such persons would be
responsible for
complying with the Student Code even between periods of their
actual
enrollment. Similarly, the Student Code would apply to students
who have been
accepted for admission but who are on campus prior to the
beginning of their
first semester. Also, under this model, students residing at one
institution
while enrolled at another would face the possibility of
discipline at each
institution for misbehavior in the institution of residence. The
institution
of residence should make sure that, if it follows this model,
such visiting
students are informed of the terms of the Code when they begin
their
residence. Similarly, it would be a good practice to advise
students, in their
letter of acceptance for admission or when they come to campus
for events such
as orientation, of the applicability of the student code (as
well as other
student affairs policies of importance, for example, a "three
strikes and
you're out" alcohol policy, if the institution has one). This
definition would
also include students enrolled in courses delivered by some form
of distance
education. Institutions will have to consider carefully,
however, the
ramifications and possible adjustments necessary to the student
conduct
process to accommodate students who reside some distance from
the physical
campus.
3. The term "faculty member" means any person hired by the
[College]
[University] to conduct classroom or teaching activities or
who is
otherwise considered by the [College] [University] to be a
member of its
faculty.
4. The term "[College] [University] official" includes any
person
employed by the [College] [University], performing assigned
administrative
or professional responsibilities.
5. The term "member of the [College] [University]
community" includes
any person who is a student, faculty member, [College]
[University]
official or any other person employed by the [College]
[University]. A
person's status in a particular situation shall be determined
by [title of
appropriate college or university administrator]. [FN62]
6. The term "[College] [University] premises" includes all
land,
buildings, facilities, and other property in the possession
of or owned,
used, or controlled by the [College] [University] (including
adjacent
streets and sidewalks).
*20 7. The term "organization" means any number of persons
who have
complied with the formal requirements for [College]
[University]
[recognition/registration].
8. The term "Student Conduct Board" means any person or
persons
authorized by the [title of administrator identified in
Article I, number
13 [FN63] to determine whether a student has violated the
Student Code and
to recommend sanctions that may be imposed when a rules
violation has been
committed.
Commentary. A "Student Conduct Board," sometimes called a
"hearing board,"
need not be comprised of any particular number of persons. A
single person
could be authorized to serve as the Student Conduct Board.
Concerns recur
about the composition of such bodies. An impartial decision
maker is
essential. [FN64] Courts have recognized, however, that in the
college or
university context it is often impossible to assemble a group
who has not in
some way heard of the charges at issue or who do not know the
person(s)
involved. [FN65] Frequently, a "Student Conduct Board" that
determines.
whether the Student Code has been violated includes both
students and faculty
members or administrators. [FN66] In this model, the student
conduct
administrator defines the composition of hearing boards but, if
the history or
social system on campus dictates otherwise, the composition may
be defined in
more detail in the Student Code.
A critical point in naming the boards and job titles of persons
involved in
student discipline is not to fall into the old pattern of using
criminal law
or civil law sound-alike words, such as "judicial" (as in
"student judicial
board"). Use of such language creates the false impression that
the Student
Code is intended to "model" courtroom or judicial procedures.
Instead, the
process is an educational one by which the institution applies
its values to
establishing the best possible living/learning environment for
students. It is
not a "judicial" process at all and does not either enforce
outside criminal
or civil law or intend to mimic such *21 judicial processes.
[FN67]
9. The term "Student Conduct Administrator" means a
[College]
[University] official authorized on a case-by-case basis by
the [title of
administrator identified in Article I, number 13] to impose
sanctions upon
any student(s) found to have violated the Student Code. The
[title of
administrator identified in Article I, number 13] may
authorize a Student
Conduct Administrator to serve simultaneously as a Student
Conduct
Administrator and the sole member or one of the members of
the Student
Conduct Board. The [title of administrator identified in
Article I, number
13] may authorize the same Student Conduct Administrator to
impose
sanctions in all cases.
Commentary. Just as courts have recognized that persons
comprising a Student
Conduct Board may have prior knowledge of the events at issue or
the person(s)
involved, they have recognized that it is not always easy to
avoid having one
person occupy multiple roles with respect to disciplinary
proceedings, even
when suspension or expulsion is a possible outcome. [FN68] While
it is not
improper for student affairs professionals to serve in multiple
roles,
whenever possible the college or university should avoid putting
someone in
the position of "wearing two hats." If the size of the
institution's staff
permits, it is preferable to have the functions of informal
investigating
and/or mediating separated from that of determining whether a
violation has
occurred and setting the sanction. Thus, this model recognizes
the
advisability of separating the functions when possible, while
preserving the
flexibility to combine functions--which usually will be a fact
of life *22 at
many institutions.
A student challenging a Student Conduct Board's decision on the
grounds of
bias must demonstrate actual bias or that the board acted
improperly. [FN69]
There is, however, nothing improper about a college or
university official
advising the Student Conduct Board during the disciplinary
process. [FN70]
This model anticipates that a college or university official
will determine
sanctions after a violation has been found. In some systems
sanctions are set
by the same Student Conduct Board which determines whether a
violation has
occurred. [FN71]
10. The term "Appellate Board" means any person or persons
authorized by
the [title of administrator identified in Article I, number
13] to
consider an appeal from a Student Conduct Board's
determination as to
whether a student has violated the Student Code or from the
sanctions
imposed by the Student Conduct Administrator.
11. The term "shall" is used in the imperative sense.
12. The term "may" is used in the permissive sense.
13. The [title of appropriate administrator] is that
person designated
by the [College] [University] President to be responsible
for the
administration of the Student Code.
14. The term "policy" means the written regulations of the
[College]
[University] as found in, but not limited to, the Student
Code, Residence
Life Handbook, the [College] [University] web page and
computer use policy,
and Graduate/Undergraduate Catalogs.
Commentary. Listed herein is a sampling of the types of other
sources of
rules and regulations governing colleges or universities. The
institution
should include here a list of the primary places where such
rules and
regulations may be found.
15. The term "cheating" includes, but is not limited to:
(1) use of any
unauthorized assistance in taking quizzes, tests, or
examinations; (2) use
of *23 sources beyond those authorized by the instructor in
writing papers,
preparing reports, solving problems, or carrying out other
assignments; (3)
the acquisition, without permission, of tests or other
academic material
belonging to a member of the [College] [University] faculty
or staff (4)
engaging in any behavior specifically prohibited by a faculty
member in the
course syllabus or class discussion.
16. The term "plagiarism" includes, but is not limited to,
the use, by
paraphrase or direct quotation, of the published or
unpublished work of
another person without full and clear acknowledgment. It also
includes the
unacknowledged use of materials prepared by another person or
agency
engaged in the selling of term papers or other academic
materials.
Commentary. Cheating and plagiarism are the two most common
types of academic
misconduct. [FN72] Faculty should be strongly encouraged to
discuss academic
misconduct in the course syllabus and their course web page if
they have one,
so that it is in writing, and in class discussion. The courts'
views about
institutional decisions regarding such academic misconduct will
be discussed
in greater detail hereafter. [FN73] In any event, drafters must
assure that
the possible overlap between faculty response and student
affairs' response to
academic misbehavior be addressed directly and thoughtfully so
that there is
no confusion as to the process that applies to such situations.
17. The term "Complainant" means any person who submits a
charge
alleging that a student violated this Student Code. When a
student believes
that s/he has been a victim of another student's misconduct,
the student
who believes s/he has been a victim will have the same rights
under this
Student Code as are provided to the Complainant, even if
another member of
the [College][University] community submitted the charge
itself.
Commentary. Normally, a student who believes s/he has been the
victim of
another student's misconduct becomes the Complainant. This is
not always the
case. For example, a member of campus security may be the
technical
Complainant if a matter begins with a security report. In that
event, this
provision preserves for the student who believes s/he was a
victim the same
rights (such as to attend the entire hearing or to appeal) as
are also
accorded to the Complainant.
18. The term "Accused Student" means any student accused
of violating
this Student Code.
*24 ARTICLE II: STUDENT CODE AUTHORITY
1. The Student Conduct Administrator shall determine the
composition of
Student Conduct Boards and Appellate Boards and determine
which Student
Conduct Board, Student Conduct Administrator and Appellate
Board shall be
authorized to hear each matter.
2. The [title of appropriate administrator] shall develop
policies for
the administration of the student conduct system and
procedural rules for
the conduct of Student Conduct Board Hearings that are not
inconsistent
with provisions of the Student Code.
Commentary. This provision is intended to allow the institution
to adopt and
to revise operating procedures in a nimble fashion, not invoking
the more
complicated formal process used to review and to revise the
Student Code
itself.
3. Decisions made by a Student Conduct Board and/or
Student Conduct
Administrator shall be final, pending the normal appeal
process.
ARTICLE III: PROSCRIBED CONDUCT
A. Jurisdiction of the [College] [University] Student Code
The [College] [University] Student Code shall apply to conduct
that occurs on
[College] [University] premises, at [College] [University]
sponsored
activities, and to off-campus conduct that adversely affects the
[College]
[University] Community and/or the pursuit of its objectives.
Each student
shall be responsible for his/her conduct from the time of
application for
admission through the actual awarding of a degree, even though
conduct may
occur before classes begin or after classes end, as well as
during the
academic year and during periods between terms of actual
enrollment (and even
if their conduct is not discovered until after a degree is
awarded). [FN74]
The Student Code shall apply to a student's conduct even if the
student
withdraws from school while a disciplinary matter is pending.
The [title of
administrator identified in Article I, number 13] shall decide
whether the
Student Code shall be applied to conduct occurring off campus,
on a case by
case basis, in *25 his/her sole discretion.
Commentary. [FN75] The college or university should state in
general terms the
conduct which the institution intends to reach. A college or
university has
jurisdiction to impose sanctions upon a student for activities
that take place
off campus when those activities adversely affect the interests
of the college
or university community. School officials have wide latitude in
determining
whether an activity adversely affects the interests of the
college or
university community. [FN76]
In 1968, one court noted the demise of 'in loco parentis' and
opined that it
foresaw "a trend to reject the authority of university officials
to regulate
'off-campus' activity of students." [FN77] The actual trend was
to embrace and
to encourage institutions that worked to regulate off-campus
student
misbehavior. The Missouri federal judges concluded that it was
appropriate for
institutions to regulate such off-campus behavior and even to
expect "superior
ethical and moral behavior." [FN78] So did the courts in Esteban
v. Central
Missouri State College, [FN79] Krasnow v. Virginia Polytechnic
Inst. & State
Univ., [FN80] Hill v. Michigan State University, [FN81] Ray *26
v. Wilmington
College, [FN82] numerous other cases, [FN83] and, even a state
attorney
general. [FN84]
Under this Model Student Code, when an activity occurs off
campus, that is not
at a college or university sponsored event, it would be the
responsibility of
the administrator designated in Article I, number 13, to
determine whether
college or university jurisdiction should be asserted. [FN85]
Utilizing this
procedure on a case-by-case basis allows the institution to
consider the
unique facts of each situation without the impossible problem of
drafting
language to cover every possible situation.
*27 Institutions with multiple, remote or overseas locations
will wish to
state here whether the student code applies in those locations.
B. Conduct--Rules and Regulations
Any student found to have committed or to have attempted to
commit the
following misconduct is subject to the disciplinary sanctions
outlined in
Article IV:
1. Acts of dishonesty, including but not limited to the
following:
a. Cheating, plagiarism, or other forms of academic
dishonesty.
b. Furnishing false information to any [College]
[University]
official, faculty member, or office.
c. Forgery, alteration, or misuse of any [College]
[University]
document, record, or instrument of identification.
2. Disruption or obstruction of teaching, research,
administration,
disciplinary proceedings, other [College] [University]
activities,
including its public service functions on or off campus, or
of other
authorized non-[College] [University] activities when the
conduct occurs on
[College] [University] premises.
3. Physical abuse, verbal abuse, threats, intimidation,
harassment,
coercion, and/or other conduct which threatens or endangers
the health or
safety of any person. [FN86]
*28 Commentary. It is very important to include a broadly worded
rule, such as
this one, so that there are no gaps of misconduct between the
areas covered by
more specific rules. [FN87]
4. Attempted or actual theft of and/or damage to property
of the
[College] [University] or property of a member of the
[College]
[University] community or other personal or public property,
on or off
campus.
5. Hazing, [FN88] defined as an act which endangers the
mental or
physical health or safety of a student, or which destroys or
removes public
or private property, for the purpose of initiation, admission
into,
affiliation with, or as a condition for continued membership
in, a group or
organization. [FN89] The express or *29 implied consent of
the victim will
not be a defense. Apathy or acquiescence in the presence of
hazing are not
neutral acts; they are violations of this rule. [FN90]
6. Failure to comply with directions of [College]
[University] officials
or law enforcement officers acting in performance of their
duties and/or
failure to identify oneself to these persons when requested
to do so.
7. Unauthorized possession, duplication or use of keys to
any [College]
[University] premises or unauthorized entry to or use of
[College]
[University] premises.
8. Violation of any [College] [University] policy, rule,
or regulation
published in hard copy or available electronically on the
[College]
[University] website.
9. Violation of any federal, state or local law. [FN91]
*30 Commentary. It is an appropriate practice to cite another
rule that a
student's conduct may also have violated whenever this rule is
cited so that
the institution is enforcing its rules rather than the standards
set by
persons outside the academic community for law enforcement
purposes. This
practice will help to avoid the mistaken notion that the
institution is
enforcing the criminal laws.
10. Use, possession, manufacturing, or distribution of
marijuana,
heroin, narcotics, or other controlled substances except as
expressly
permitted by law.
11. Use, possession, manufacturing, or distribution of
alcoholic
beverages (except as expressly permitted by [College]
[University]
regulations), or public intoxication. Alcoholic beverages may
not, in any
circumstance, be used by, possessed by or distributed to any
person under
twenty-one (21) years of age.
Commentary. This rule should be consistent with the
institution's alcohol
policy, for example, by making reference to the policy or to
special features
of it (such as a "three strikes and you're out" policy, or a
parental
notification policy, if applicable). Rules such as 10 and 11
comply with the
Drug-Free Schools and Communities Act [FN92], and 34 C.F.R. Part
86, requiring
higher education institutions receiving any federal financial
aid to have
"standards of conduct that clearly prohibit, at a minimum, the
unlawful
possession, use, or distribution of illicit drugs and alcohol by
students"
[FN93] for which the institution will impose sanctions. [FN94]
12. Illegal or unauthorized possession of firearms,
explosives, other
weapons, or dangerous chemicals on [College] [University]
premises or use
of any such item, even if legally possessed, in a manner that
harms,
threatens or causes fear to others. [FN95]
13. Participating in an on-campus or off-campus
demonstration, riot or
activity that disrupts the normal operations of the [College]
[University]
and/or infringes on the rights of other members of the
[College]
[University] community; leading or inciting others to disrupt
scheduled
and/or normal activities within any campus building or area.
14. Obstruction of the free flow of pedestrian or
vehicular traffic on
[College] [University] premises or at [College] [University]
sponsored or
supervised functions.
*31 15. Conduct that is disorderly, lewd, or indecent;
breach of peace;
or aiding, abetting, or procuring another person to breach
the peace on
[College] [University] premises or at functions sponsored by,
or
participated in by, the [College] [University] or members of
the academic
community. Disorderly Conduct includes but is not limited to:
Any
unauthorized use of electronic or other devices to make an
audio or video
record of any person while on [College] [University] premises
without
his/her prior knowledge, or without his/her effective consent
when such a
recording is likely to cause injury or distress. This
includes, but is not
limited to, surreptitiously taking pictures of another person
in a gym,
locker room, or restroom.
Commentary. The provisions set forth in rule fifteen (adapted in
part from a
rule at the University of Denver) are intended to give student
affairs
professionals some tools to deal with inappropriate conduct in
the
ever-changing electronic age.
16. Theft or other abuse of computer facilities and
resources, including
but not limited to:
a. Unauthorized entry into a file, to use, read, or
change the
contents, or for any other purpose.
b. Unauthorized transfer of a file.
c. Use of another individual's identification and/or
password.
d. Use of computing facilities and resources to
interfere with the
work of another student, faculty member or [College]
[University]
Official.
e. Use of computing facilities and resources to send
obscene or
abusive messages.
f. Use of computing facilities and resources to
interfere with normal
operation of the [College] [University] computing system.
g. Use of computing facilities and resources in
violation of
copyright laws.
h. Any violation of the [College][University] Computer
Use Policy.
[FN96]
17. Abuse of the Student Conduct System, including but not
limited to:
a. Failure to obey the notice from a Student Conduct
Board or
[College] [University] official to appear for a meeting
or hearing as
part of the Student Conduct System.
b. Falsification, distortion, or misrepresentation of
information before
a Student Conduct Board.
c. Disruption or interference with the orderly conduct
of a Student
Conduct Board proceeding.
d. Institution of a student conduct code proceeding in
bad faith.
*32 e. Attempting to discourage an individual's proper
participating
in, or use of, the student conduct system.
f. Attempting to influence the impartiality of a member
of a Student
Conduct Board prior to, and/or during the course of, the
Student Conduct
Board proceeding.
g. Harassment (verbal or physical) and/or intimidation
of a member of
a Student Conduct Board prior to, during, and/or after a
student conduct
code proceeding.
h. Failure to comply with the sanction(s) imposed under
the Student
Code.
i. Influencing or attempting to influence another
person to commit an
abuse of the student conduct code system.
Commentary. Colleges or universities are, of course, free to
include in their
lists of misconduct as many types of acts as they choose. The
list of acts of
misconduct that constitute violations of the Student Code should
give students
notice of the types of conduct that may result in sanctions but
not every
specific type of misconduct is listed because it would not be
possible to do
so.
Courts give college and university officials much greater
freedom
concerning purely academic decisions than they do concerning
purely
disciplinary decisions. [FN97] Academic misconduct cases
involving cheating or
plagiarism, for example, present a unique hybrid of academic and
disciplinary
decisions. [FN98] Because courts have a real challenge in
deciding whether
misconduct is academic or disciplinary, [FN99] the authors
suggest that public
institutions review with campus counsel each case of *33
"academic misconduct"
which might result in suspension or expulsion to assure that the
minimal
procedural due process required in the particular circumstance
is provided. No
such dilemma is presented at private institutions. Academic
misconduct also
may be grounds for academic sanctions, such as the imposition of
a lower
grade. This system must be dovetailed with the institutional
process for
disciplinary review of misconduct in the academic setting if
additional
sanctions are possible.
Concerning items number three, thirteen, fifteen, sixteen, and
seventeen, a
public institution must ensure that regulations that may
infringe upon the
right of free speech do not violate the First Amendment because
of overbreadth
or vagueness. [FN100]
Generally, it is not considered to be a separate student code
violation for a
student to remain mute in his/her hearing, as if the Fifth
Amendment
(applicable in criminal cases) applied. Some schools expressly
give Accused
Students that option. Of course, mute students give up the
chance to explain
their side of the story. Moreover, a violation of the Student
Code may
nevertheless be found based upon the other evidence presented.
[FN101]
18. Students are required to engage in responsible social
conduct that
reflects *34 credit upon the [College][University] community
[FN102] and to
model good citizenship in any community. [FN103]
Commentary. Although it is most common to enforce negatively
worded community
standards, ones stated in the affirmative are permissible, too.
They are used
most commonly at private institutions. Endorsing the view of one
commentator
who urged that detailed codes of prohibition not be used in
higher education,
the Missouri judges noted:
The notice of the scholastic and behavioral standards to the
students may be
written or oral, or partly written and partly oral, but
preferably written.
The standards may be positive or negative in form .... For this
reason,
general affirmative statements of what is expected of a student
may in some
areas be preferable in higher education. Such affirmative
standards may be
employed, and *35 discipline of students based thereon. [FN104]
C. Violation of Law and [College] [University] Discipline
1. [Alternative A]
[College] [University] disciplinary proceedings may be
instituted against a
student charged with conduct that potentially violates both the
criminal law
and this Student Code (that is, if both possible violations
result from the
same factual situation) without regard to the pendency of civil
or criminal
litigation in court or criminal arrest and prosecution.
Proceedings under this
Student Code may be carried out prior to, [FN105] simultaneously
with, or
following civil or criminal proceedings off campus at the
discretion of [the
person identified in Article I (13)]. Determinations made or
sanctions imposed
under this Student Code shall not be subject to change because
criminal
charges arising out of the same facts giving rise to violation
of University
rules were dismissed, reduced, or resolved in favor of or
against the criminal
law defendant.
[Alternative B]
If a violation of law which also would be a violation of this
Student Code is
alleged, proceedings under this Student Code may go forward
against an Accused
Student who has been subjected to criminal prosecution only if
the [College]
[University] determines that its interest is clearly distinct
from that of the
community outside the [College] [University]. Ordinarily, the
[College] *36
[University] should not impose sanctions if public prosecution
of a student is
anticipated or until law enforcement officials have disposed of
the case.
[FN106]
Commentary. A college or university may take student
disciplinary action
before possible criminal charges arising out of the same facts
are resolved.
There are two basic approaches to the recurring dilemma of how a
college or
university should proceed when a student is accused not only of
violating
school regulations, but also of breaking the criminal law.
Alternative A is
the proactive approach, in which the institution has reserved
the authority to
take action under the Student Code in all such situations. A
college or
university may choose this approach because it does not wish to
trivialize its
code. To postpone the use of its disciplinary code and system of
factual
determinations and appeals in those cases involving criminal
conduct would
lead, in the words of one court, to an "absurd situation:" A
student who
violated a rule or regulation short of committing a crime
receives immediate
discipline, while a student who committed a more serious *37
offense is
entitled to attend school without immediate disciplinary action.
[FN107]
Alternative B illustrates the other approach. Although such an
approach is not
often admitted explicitly, it is not uncommon in practice. It
does, however,
lead to a Student Code which deals only with minor offenses. The
authors
recommend Alternative A.
2. When a student is charged by federal, state, or local
authorities
with a violation of law, the [College] [University] will not
request or
agree to special consideration for that individual because of
his or her
status as a student. If the alleged offense is also being
processed under
the Student Code, the [College] [University] may advise
off-campus
authorities of the existence of the Student Code and of how
such matters
are typically handled within the [College] [University]
community. The [
College] [University] will attempt to cooperate with law
enforcement and
other agencies in the enforcement of criminal law on campus
and in the
conditions imposed by criminal courts for the rehabilitation
of student
violators (provided that the conditions do not conflict with
campus rules
or sanctions). Individual students and other members of the
[College]
[University] community, acting in their personal capacities,
remain free to
interact with governmental representatives as they deem
appropriate.
Commentary. It is important to establish a solid relationship
with the local
prosecuting attorney in anticipation of such situations. The
prosecuting
attorney should be educated about the institution's student code
and the
general philosophy regarding discipline. By doing this, the
institution may
better coordinate its efforts with that of the prosecuting
attorney when a
disciplinary problem overlapping criminal charges arises. In
addition, the
prosecuting attorney who understands that the college or
university will
handle matters appropriately may choose instead to allow the
institution to
handle the situation. Finally, familiarizing the prosecuting
attorney with the
student code before an incident arises helps to avoid
misunderstandings and
media errors when an incident arises.
This area requires a delicate balance, good judgment, and an
appreciation of
the separate rules of student discipline and law enforcement.
College and
university officials must take care not to attempt, or appear to
attempt, to
influence prosecutorial decision making. This is the same
balance followed by
law enforcement when they avoid suggesting to college and
university officials
when or how to proceed in enforcing campus rules or what campus
sanctions to
impose. Although the campus and criminal systems must remain
distinct, with
neither dictating to the other, it is nevertheless important to
have a clear
line of communications. In addition, college officials must take
care not to
discourage or to appear to discourage the student "victim" from
pursuing
criminal charges. [FN108]
*38 In addition to working with the prosecuting attorney, the
college or
university attorney should establish a relationship with the
attorney(s) for
the Accused Student or for a student who feels s/he has been a
victim of
another student's conduct. This is important because the college
or university
attorney can help the outside attorney make an informed decision
as to how
his/her client will interact with the student code system. For
example, if the
Accused Student is found to have violated college or university
rules,
sanctions will be imposed and law enforcement may decide, at
their discretion,
to take these sanctions into account in making prosecutorial
decisions. Campus
sanctions most likely will be different than criminal sanctions.
Complainants
who feel vindicated and satisfied with the result of the
institutional
disciplinary hearing may be inclined to drop the criminal
charges. In any
case, the institution's representative must be mindful of trying
to provide a
process that reinforces campus values and that is fair for both
the student
who has alleged a violation of the Student Code and the alleged
violator.
ARTICLE IV: STUDENT CONDUCT CODE PROCEDURES
A. Charges and Student Conduct Board Hearings
1. Any member of the [College] [University] community may
file charges
against a student for violations of the Student Code. A
charge shall be
prepared in writing and directed to the Student Conduct
Administrator. Any
charge should be submitted as soon as possible after the
event takes place,
preferably within [specify time period].
Commentary. This section not only describes who may file
charges, but also
requires that such charges be in writing and that they all be
submitted to the
same person. Such measures are desirable because: (1) they
ensure that college
or university officials can immediately assess the gravity of
each complaint;
and (2) they help to provide notice in an orderly fashion.
[FN109] The use of
a standard form for charges will ensure the receipt of all the
necessary
information.
Practice varies widely concerning the time in which charges may
be presented.
For example, at Westminster College, Complainants are asked to
file charges
within forty-eight (48) hours. [FN110] At Pratt Institute,
charges of
discriminatory treatment must be submitted within twenty-eight
(28) days of
the date the Complainant first attempted to resolve the matter,
which must be
done within *39 ninety (90) days of the incident. [FN111] At
Northwestern
University, Complainants have one year during which to file
charges. [FN112]
Finally, Indiana University's Code of Student Rights,
Responsibilities, and
Conduct contains no "statute of limitations" period at all.
[FN113] The key,
however, is to provide a flexible guideline, so that student
victims will come
forward even if they are "late" in doing so.
2. The Student Conduct Administrator may conduct an
investigation to
determine if the charges have merit and/or if they can be
disposed of
administratively by mutual consent of the parties involved on
a basis
acceptable to the Student Conduct Administrator. Such
disposition shall be
final and there shall be no subsequent proceedings. If the
charges are not
admitted and/or cannot be disposed of by mutual consent, the
Student
Conduct Administrator may later serve in the same matter as
the Student
Conduct Board or a member thereof. If the student admits
violating
institutional rules, but sanctions are not agreed to,
subsequent process,
including a hearing if necessary, shall be limited to
determining the
appropriate sanction(s).
Commentary. As noted previously, [FN114] courts have recognized
that it is not
easy in the college and university setting to ensure that the
participants in
the disciplinary process have not had prior contact with the
student(s)
involved or prior knowledge of the events which are the subject
of the
proceeding. Where staffing permits, it is preferable to separate
the
administrative and mediation [FN115] functions from the fact
finding and
sanctioning functions.
3. All charges shall be presented to the Accused Student
in written
form. A time shall be set for a Student Conduct Board
Hearing, not less
than five nor more than fifteen calendar days after the
student has been
notified. Maximum time limits for scheduling of Student
Conduct Board
Hearings may be extended at the discretion of the Student
Conduct
Administrator.
Commentary. Notice and an opportunity to be heard are essential
to all student
disciplinary proceedings, at least in the public college and
university
settings. [FN116]
*40 Requiring that the Accused Student receive written notice of
the charge
ensures that the Accused Student receives adequate notice of the
alleged
violations. Such notice should be "reasonably calculated, under
all the
circumstances, to apprise interested parties of the pendency of
the action and
afford them an opportunity to present their objections." [FN117]
Further, there is no bright-line rule governing how far in
advance of a
Student Conduct Board Hearing notice should be given. [FN118]
Indeed, some
courts have indicated that notice of charges may be given at the
same time the
student has an opportunity to defend against those charges at
least in less
serious cases. [FN119] Nevertheless, it seems fairer to give
some reasonable
amount of time to allow an Accused Student to prepare. The
institution must,
however, be sure to follow its own rules once it establishes an
amount of time
which is to pass between notice and the Student Conduct Board
Hearing. [FN120]
Granting the Student Conduct Administrator discretion to extend
the maximum
time limits permits the institution flexibility in cases in
which examination
periods, breaks, holidays, and other occurrences disrupt the
time at which
Student Conduct Board Hearings would otherwise be scheduled.
Some institutions
may wish to deal with break and/or holiday issues more
explicitly by providing
in their codes for dates certain to be used in such situations.
For example, a
college or university may wish to provide that, in cases in
which an
examination period or break intervenes between the time of
notice and the
Student Conduct Board Hearing date, such hearings always will be
held during
the first week in which classes are again in session.
4. Student Conduct Board Hearings [FN121] shall be
conducted by a
Student Conduct Board according to the following guidelines
except as
provided by article IV(A)(7) below:
a. Student Conduct Board Hearings normally shall be
conducted in
private. [FN122]
*41 b. The Complainant, Accused Student and their
advisors, [FN123]
if any, shall be allowed to attend the entire portion of
the Student
Conduct Board Hearing at which information is received
(excluding
deliberations). [FN124] Admission of any other person to
the Student
Conduct Board Hearing shall be at the discretion of the
Student Conduct
Board and/or its Student Conduct Administrator. [FN125]
c. In Student Conduct Board Hearings involving more
than one Accused
Student, the Student Conduct Administrator, in his or her
discretion,
may permit the Student Conduct Board Hearings concerning
each student to
be conducted either separately or jointly.
d. The Complainant and the Accused Student have the
right to be
assisted by an advisor they choose, at their own expense.
The advisor
[FN126] must be a *42 member of the [College][University]
community
[FN127] and may not be an attorney. [FN128] The
Complainant and/or the
Accused Student is responsible for presenting his or her
own
information, and therefore, advisors are not permitted to
speak or to
participate directly in any Student Conduct Board *43
Hearing before a
Student Conduct Board. A student should select as an
advisor a person
whose schedule allows attendance at the scheduled date and
time for the
Student Conduct Board Hearing because delays will not
normally be
allowed due to the scheduling conflicts of an advisor.
[FN129]
e. The Complainant, the Accused Student and the Student
Conduct Board
may arrange for witnesses to present pertinent information
to the
Student Conduct Board. The [College][University] will try
to arrange the
attendance of possible witnesses who are members of
the
[College][University] community, if reasonably possible,
and who are
identified by the Complainant and/or Accused Student at
least two
weekdays prior to the Student Conduct Board Hearing.
[FN130] Witnesses
will provide information to and answer questions from the
Student
Conduct Board. Questions may be suggested by the Accused
Student and/or
Complainant to be answered by each other or by other
witnesses. [FN131]
This will be conducted by the Student Conduct Board with
such questions
directed to the chairperson, rather than to the witness
directly. This
method is used to preserve the educational tone of the
hearing and to
avoid creation of an adversarial environment. Questions of
whether
potential information will be received shall be resolved
in the
discretion of the chairperson of the Student Conduct
Board.
f. Pertinent records, exhibits, and written statements
(including
Student Impact Statements) may be accepted as information
for
consideration by a Student Conduct Board at the discretion
of the
chairperson.
g. All procedural questions are subject to the final
decision of the
chairperson of the Student Conduct Board. [FN132]
*44 h. After the portion of the Student Conduct Board
Hearing concludes
in which all pertinent information has been received, the
Student
Conduct Board shall determine (by majority vote if the
Student Conduct
Board consists of more than one person) whether the
Accused Student has
violated each section of the Student Code which the
student is charged
with violating.
i. The Student Conduct Board's determination shall be
made on the
basis of whether it is more likely than not that the
Accused Student
violated the Student Code.
j. Formal rules of process, procedure, and/or technical
rules of
evidence, such as are applied in criminal or civil court,
are not used
in Student Code proceedings. [FN133]
Commentary. The law requires no particular form of hearing.
[FN134] For two
reasons, however, the institution should establish guidelines
pursuant to
which hearings are to be conducted. First, doing so will ensure
that the
institution treats students accused of misconduct evenhandedly.
That is, a
college or university can feel safe in knowing that, as long as
the student
disciplinary board follows the procedures set forth in its code,
each Accused
Student will receive the same treatment. Thus, there is less
opportunity for
any student to complain of unequal treatment. Second,
establishing such
guidelines in advance will avoid ad hoc decisions on many
difficult issues.
This compendium of hearing guidelines incorporates the following
legal
principles: the hearing need not be open to the public, [FN135]
and neither
the Federal Rules of Evidence nor any state's rules of evidence
apply in
student disciplinary proceedings. [FN136]
*45 Third, a student has no right to be represented by an
attorney in the
adversarial manner in which attorneys represent clients in
judicial
proceedings, at student disciplinary hearings at private
institutions, [FN137]
and in most proceedings at public institutions, even including
public K-12
schools at which, unlike public colleges, attendance is
mandatory. [FN138]
*46 There are two exceptions to this rule that are applicable to
public
institutions. First, a public institution's disciplinary board
may be
considered a state agency in some situations. Being deemed a
state agency may
bring into play certain state administrative agency laws, which
may allow full
courtroom-like representation by an attorney. [FN139] Thus, as
always, one
must consider the requirements of state law. Second, if parallel
criminal
charges are pending, [FN140] some courts have required a *47
public college or
university to permit the student to have his/her own attorney
present. [FN141]
Even in these cases, however, the attorney may be restricted to
the same quiet
advisory role served by non-attorney advisors. [FN142]
It is not required that either students or their advisor be
given the
opportunity to cross-examine witnesses directly.
Cross-examination by or
through the Student Conduct Board, as suggested in the appended
model Student
Conduct Board Hearing script, is sufficient at the college and
university
level. [FN143]
It is rare that college or university counsel take part in
student conduct
hearings, [FN144] although they often attend to make sure that
other attorneys
attending as advisors behave properly.
A college or university may wish to institute either an
arbitration or a
mediation requirement prior to reaching the more formal Student
Conduct Board
Hearing *48 stage. Such an option is acceptable because the
concept of due
process is flexible, requiring no more than is necessary to
provide fair
notice and an opportunity to be heard. In other words, in some
cases a formal
fact finding process is not required; an informal meeting
between the students
involved and college or university administrators suffices, as
long as Accused
Students are informed of the charges and given an opportunity to
tell their
side of the story.
Other schools may not want to require such an initial meeting
because such
meetings could consume all of the administrator's time with
little benefit.
Local experience will dictate whether it is effective to attempt
to resolve
alleged Student Code violations through such a meeting, although
the most
common practice is to emphasize efforts at mediation or other
informal
resolution.
This Model Student Code advocates using a "more likely than not"
or
"preponderance of the evidence" standard for disciplinary
decision making.
This is because the "beyond a reasonable doubt" standard applied
in criminal
cases is too demanding for college and university disciplinary
proceedings.
[FN145] After all, criminal law standards were never intended to
be standards
for student behavior within an academic community. Some codes
use a "clear and
convincing" standard, but such a standard is not as common, nor
is it required
by law. [FN146] The use of the "more likely than not" standard
is normal for
important civil judicial proceedings. [FN147] More importantly,
it reflects
the difference between college and *49 university student
discipline and
judicial processes. The "clear and convincing" and "beyond a
reasonable doubt"
standard inaccurately treat the Accused Student as more
important than the
student who believes s/he was a victim of misconduct and/or as
having more
important interests than all other members of the academic
community have in
the maintenance of a calm, peaceful and productive
living/learning
environment. The "preponderance" standard correctly treats each
one of these
constituencies as equally important when a fact finder tries to
decide what
happened when the facts are disputed.
Courts review disciplinary decisions of colleges or universities
under a
"substantial evidence" standard. Courts examine whether there
was enough
information in the fact finding process to support the
determination that it
was "more likely than not" that the Accused Student violated the
Student Code.
In doing so, courts do not make new credibility determinations
but assume that
the information supporting the determination was deemed credible
by the fact
finder. In this sense, the "substantial evidence" review is a
relatively easy
standard to meet. The same standard applies as one of the
standards for
internal appellate review under most student conduct codes.
[FN148]
5. There shall be a single verbatim record, such as a tape
recording, of
all Student Conduct Board Hearings before a Student Conduct
Board (not
including deliberations). Deliberations shall not be
recorded. The record
shall be the property of the [College] [University]. [FN149]
Commentary. This provision has several purposes. First, it
assures that a
record will be made of the hearing, [FN150] and deters students
from asking to
make *50 their own copies. Second, it establishes that the
record is the
property of the institution. Third, it can be used to assist the
fact-finder
when deliberating over whether a student violated the
institution's rules or
in setting sanctions. Fourth, it can be used by a person
appealing in
preparation for his/her appeal. Finally, it enables an appellate
reviewer
(internal or external) to know what "really" happened before the
Student
Conduct Board and keeps others from misrepresenting what
occurred. [FN151]
In some cases, a student may request permission to make a record
of the
proceedings. An institution may not wish to permit a student to
do so because,
for example, it may not want its students to replay tapes of the
disciplinary
proceedings as a form of entertainment, in addition to other
privacy concerns.
6. If an Accused Student, with notice, does not appear
before a Student
Conduct Board Hearing, the information in support of the
charges shall be
presented and considered even if the Accused Student is not
present.
Commentary. "Judgment by default" without considering the
information
available about the student's conduct is a rather harsh penalty
to impose upon
a student.
7. The Student Conduct Board may accommodate concerns for
the personal
safety, well-being, and/or fears of confrontation of the
Complainant,
Accused Student, and/or other witness during the hearing by
providing
separate facilities, by using a visual screen, and/or by
permitting
participation by telephone, videophone, closed circuit
television, video
conferencing, videotape, audio tape, written statement, or
other means,
where and as determined in the sole judgment of [title of
administrator
identified in Article I, number 13] to be appropriate.
[FN152]
*51 Commentary. This section concerns what to do about a witness
who is
reluctant to tell his/her story to a conduct board, because, for
example, s/he
does not desire a confrontation. [FN153] The accommodations
discussed below
should be used rarely, only after efforts to educate and to
reassure the
reluctant witness about how the student discipline process
functions normally
have failed. Student affairs professionals dealing with these
fearful students
must be careful to be sensitive to genuine concerns while also
realizing that
the students involved are adults, not children of tender years.
As in all student discipline cases, the students involved must
first be
educated about the student discipline process because they may
not understand
how the process works. Worse, they may assume that campus
procedures resemble
criminal law processes. Furthermore, victim support groups
unfamiliar with the
student discipline process may discourage student accusers from
sharing
information in the normal manner in the student conduct board
hearing because
victim advocates, too, confuse campus processes with
witness-unfriendly
systems, such as the ones used in criminal court. Once they
realize that the
student discipline process has an educational tone rather than
an adversarial
one, student *52 witnesses who were initially fearful often feel
differently.
Thus, they may agree to testify without special accommodations.
In addition,
once wary support groups realize that the campus discipline
process is
purposefully not run like an adversarial criminal proceeding,
student accusers
may be encouraged to participate in the normal manner.
When a witness remains fearful even after reassurance attempts
by student
affairs professionals, however, there are competing concerns.
The student
discipline process aims to treat alleged victims and Accused
Students with
equal care and dignity and also to reach fair and correct
results. A witness
may need to feel safe and ought not be re-victimized by reliving
any traumatic
experiences. The Accused Student desires not to be wrongly
sanctioned. The
community desires a safe living and learning environment and
wishes to be
confident in its discipline process; that is, if a rule
violation is found,
the community seeks to be confident that one actually occurred.
In addition,
student affairs professionals need to have conduct code language
that enables
them to accommodate genuine fears appropriately without creating
a lawsuit
alleging failure to follow the college or university's own rules
once the
difficult job of determining responsibility and/or sanctions is
completed. The
language proposed in article IV(A)(7), coupled with the other
provisions of
this Model Code, attempts to address the two process issues that
contribute to
making witnesses reluctant: fear of visual confrontation and
fear of direct
cross-examination confrontation in the abrasive style used by
attorneys in
criminal and civil cases in court.
At first blush, it may appear that private institutions have
more flexibility
in dealing with this challenge than their public counterparts.
[FN154] Upon
closer scrutiny, however, the same solutions appear to be
available at all
institutions. As we have discussed elsewhere in this Model Code,
[FN155] part
of the solution is that direct adversarial cross-examination in
the criminal
law sense is not required in student discipline hearings unless
it is provided
by the institution as a matter of *53 educational
preference.
Cross-examination through the Student Conduct Board, through
questions
suggested to the chair, as urged in this model, suffices.
As the language in article IV(A)(7) suggests, there are several
options
available if a witness remains reluctant even if s/he
understands that the
abrasive criminal law model of cross-examination is not to be
used. One
option, if technologically feasible, is to proceed with the
hearing through
closed-circuit television, with the reluctant witness in another
room from the
Student Conduct Board and the Accused Student but remaining
visually and
aurally available to all. Another approach is to allow the
reluctant witness
to participate by telephone, again from a location remote from
the Student
Conduct Board and the Accused Student. This is a less desirable
approach
because visual contact is lost. A third option that addresses
the issue of
visual confrontation might be to use a hearing room with a
one-way mirror
(sometimes available in counseling centers) so that the Student
Conduct Board,
Accused Student, and reluctant witness can all see and hear each
other, except
that the reluctant witness cannot see |
