Student Discipline Dos and Don'ts
March 22, 2001
Paul Lannon - Boston
A student discipline case recently made its
way to the Massachusetts Supreme Judicial Court. The case, Schaer v.
Brandeis University, 432 Mass. 474 (2000), involved accusations of rape by one
student against another. At stake for Brandeis were the integrity and
autonomy of its student discipline system. For Schaer, at stake were his
reputation, student records and his future at Brandeis and afterwards.
Fortunately for Brandeis, the court dismissed
Schaer’s complaint, finding that Brandeis had conducted its student
discipline proceedings with “basic fairness” and had met the student’s
“reasonable expectations.” In doing so, the court followed the vast
majority of jurisdictions in granting considerable deference to schools and
colleges in student academic and discipline matters. For private
institutions, courts generally will uphold student discipline decisions where
there was at least some evidence to support the decision, no evidence of
obvious bias or improper motives, and a modicum of procedural due process —
normally notice and a hearing. Public institutions are generally
required to provide more procedural due process than private institutions.
As a general rule, the greater the property interest at stake, the greater
amount of process due. See Goss v. Lopez, 419 U.S. 565 (1975); Dickson
v. Alabama Board of Education, 294 F.2d 150 (5th Cir. 1961).
Schools and colleges may, of course, grant
their students greater rights than are required by the courts. When
doing so, through student or parent handbooks or the like, schools and
colleges should keep in mind the following guidelines to ensure effectiveness
and decrease litigation risks.
Do
Review and publish regularly
It is crucial to keep both students and staff
regularly informed of student discipline policies and to ensure that the
policies are up to date.
Involve counsel
Involving legal counsel early and often will
greatly reduce litigation risks.
Keep it simple
Students and staff are more likely to
misunderstand and misapply complicated policies.
Make a record
It will preserve the evidence supporting the
disciplinary decision and make any review easier and more accurate.
Retain flexibility and discretion
Expressly reserve the discretion to change
policies, procedures and sanctions. It is also advisable to use a
catchall provision stating that procedural mistakes will not invalidate a
student discipline decision that was otherwise fair under the circumstances.
Emphasize non-academic graduation requirements
This will give the institution strong grounds
for withholding diplomas for non-academic misconduct.
Don't
Use court standards, rules or legalese
Contrary to popular belief, student discipline
proceedings are not bound by the rules of criminal or civil procedure, rules
of evidence or burdens of proof, unless the school or college agrees to be
bound by them. For example, one of the problematic issues facing
Brandeis was its adoption of the “clear and convincing evidence” standard
which has a specific meaning in courts of law.
Delay
For the protection of all involved,
disciplinary proceedings should be held as soon as possible. They need
not wait for the determination of related court proceedings.
Alternatively, there should be a procedure for immediately suspending students
while court proceedings are pending.
Make guarantees
Except for a guarantee of basic fairness, all
other guarantees create unnecessary risks for the institution.
Forget "e-misconduct"
Students should receive the same sanctions for
misconduct by electronic means as they would if the misconduct had occurred in
person or hard copy.
Allow appeals on the merits
Generally appeals should be limited to review
of overall fairness or procedural requirements. Review of the merits of
a decision may create a record of inconsistent results and increase the risks
in litigation.