Legal watch: Discipline on trial

Legal watch: Discipline on trial

Steinbach, Sheldon E

Periodically, cases arise addressing the degree to which courts should intervene in a student disciplinary proceeding at a private institution. Recently, a female student at Brandeis University accused a junior at the university of unwanted sexual advances and of creating a hostile environment. The Brandeis disciplinary board on student conduct, which consisted of six students and two faculty members, found that the plaintiff violated the campus disciplinary code. In addition to suspending him for the summer, the board placed him on disciplinary probation for one year. When the plaintiff appealed the decision, a state appellate court found that in addition to possibly violating its own judicial procedures, the Brandeis disciplinary board had been permitted to hear potentially prejudicial and inflammatory evidence. The court then reaffirmed the right of private colleges and universities to establish rules dealing with student misconduct, but stated that these rules may not be administered arbitrarily.

Colleges are not law-enforcement institutions; their mission is education. The harshest punishment they can hand out is expulsion. When they conduct disciplinary proceedings, they are trying to show those who misbehave-and the student body in general-what kind of behavior is expected of them.

Some critics complain that colleges and universities lack defined or enforceable disciplinary procedures, but campus proceedings do not have to follow the same rigid procedures used in criminal law. Most colleges, however, have gone to great lengths in recent years to spell out their disciplinary processes and to ensure that these are routinely followed.

When both the accuser and the accused are students, colleges generally try to provide each party with fair and conscientious counseling and, if the facts warrant, conduct a formal hearing. The student accused of violating college rules is entitled to know the charges and generally to speak in his or her own defense. But the courts have never held that colleges must afford accused students the same rights that apply under criminal law: to be represented by an attorney and to cross-examine witnesses. And in most states, college disciplinary proceedings may be conducted with less publicity-sometimes even confidentially.

Far from requiring proof “beyond a reasonable doubt,” academic disciplinary proceedings incorporate a “more likely than not” standard to determine if a student has violated campus rules. Even the language differs significantly: Violators are not “guilty,” but “responsible” for their behavior. A college imposes a “sanction” for misbehavior, not a “sentence.”

Judges in the past have deferred to college administrators if they have a written, comprehensive student discipline system clearly outlining campus rules, and provide reasonable “due process.” This system likely will continue, despite sporadic criticism. In most cases, colleges and universities are acting just as they should be.

SHELDON E. STEINBACH is vice president and general counsel at the American Council on Education.

Copyright American Council on Education Fall 2000

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