September 16, 2016

College Students Often Caught Off Guard by Code of Conduct

by Mark Weiker, Albeit Weiker

Entering college can be an exciting time for a young person, both socially and educationally. New students are forced to confront adult realities in the world they formerly knew as minors. This confrontation plays itself out regularly in college code of conduct proceedings.

The code of conduct is a set of rules that governs student behavior on campus. This includes the regulation of academic behavior (e.g. plagiarism, cheating, academic dishonesty), as well as non-academic behavior (e.g. alcohol or drug violations, hazing, sexual assault).

In large part, courts view codes of conduct as contracts between students and colleges and hold that students agree to the terms of the contract when they enroll. The terms regularly catch students off guard, often because students wait to read the “contract” until after they have been accused of violating a rule.

The first surprise to students may be that schools can sanction students for off-campus activity so long as the school properly identifies the prohibited, off-campus behavior in the code and there is some nexus between the conduct and campus. For example, colleges may impose sanctions for out-of-control parties near campus or harassment of another student off-campus.

Schools can also limit or outright prohibit a student’s use of counsel in evidentiary proceedings. Even at public universities, students do not have an absolute right to counsel in code of conduct hearings. The right to counsel only exists when an attorney appears on behalf of the university or when the proceeding was “subject to complex rules of evidence or procedure.” Many universities allow students to use attorneys in an “advisory capacity” only during disciplinary proceedings, meaning that the attorney can advise the student, but cannot speak on behalf of the student during the hearing. This is commonly referred to as “potted plant” representation.

Unsuspecting students often interpret this to mean that hiring an attorney is futile. To the contrary, an attorney can help students understand the risk involved in requesting a hearing versus accepting responsibility, help prepare questions and evidence, identify additional federal protections that may exist and provide guidance throughout the hearing itself. There are also several factors to consider when a student is facing a pending criminal charge in addition to a violation of school rules. When procedural errors do occur, attorneys can help students identify the errors and file a proper appeal.

Regardless of the severity of the conduct, the “preponderance of the evidence” standard is universally applied during conduct hearings. This can be a rude awakening to students, especially those charged with violations that result in a substantial suspension or dismissal. Very little evidence may be used to support a violation. Dismissed students can be left holding hefty student loan debt with no corresponding degree, all based on a panel’s determination that it was “more likely than not” that the violation occurred.

Additional surprises may come in the form of monetary fines, which can range from nominal amounts to several hundred dollars, and incredibly short appeal times, typically between 3-7 days.

The reality is that many students learn about the rules only after they commit a violation. It is sound advice for any new college student to review the school’s code of conduct in advance, at a minimum to be prepared, and at best, to be deterred from committing a violation.

Mark A. Weiker