Feb 182014
 

FireLet’s start this article with an axiom.

Student conduct practitioners and student conduct boards are not asked, nor are they qualified, to determine if a student’s alleged actions constitute a crime as defined by federal, state, or local law. Further, student conduct practitioners and student conduct boards are not empowered to deprive a student of the rights of life, liberty, and property as defined in the Constitution of the United States of America or any of its Amendments.

When one understands and recognizes this basic starting point for a conversation involving college and university student conduct processes, it becomes difficult to understand the continued assault on these processes by the Foundation for Individual Rights in Education (FIRE), or by FIRE’s mouthpieces at the Wall Street Journal and Fox News. Or at least it would be difficult to understand, if FIRE and their allies were using actual logic supported by evidence. Of course they are not.

The truth is that FIRE has been far more about hysteria than fact all along, and the purpose of this two part article will be to deconstruct some of the “logic” being applied by FIRE, the WSJ, and by Fox News, and to offer my own opinion on what is really driving the current irrational assault on student conduct processes, as well as to offer guidance on responding to FIRE’s recent push to include attorneys in campus conduct proceedings.

Part One: Attorneys in Student Conduct Proceedings

For readers of my blog, you will recall that I wrote about the decision of the North Carolina legislature to provide for attorneys to actively represent and participate in campus conduct processes. This was recently signed into law by North Carolina’s governor. In truth, North Carolina was the right state for FIRE to test this legislation in, given some of the other questionable bills passed and signed into law, and given the highly publicized Duke lacrosse case. Add to this mix the fact that the University of North Carolina at Chapel Hill utilizes a burden of beyond a reasonable doubt in its campus conduct process, which begs a comparison to the criminal law process, and you had the perfect launch point for FIRE’s crusade.

Moreover, this victory bolstered FIRE and it chose to pursue the same legislation in North Carolina’s northern neighbor, Virginia. Only this time the result wasn’t as rosy for FIRE. So what happened to make the outcome different in this case?

Virginia House Bill 1123

House Bill 1123 was introduced in this current legislative session. As was the case in North Carolina, FIRE and their allies used exaggerated arguments about a fictional national problem in student conduct proceedings. But when pressed to provide specifics by a Virginia House sub-committee, a colleague in Virginia has stated that FIRE could only identify three cases in which students were upset with the conduct process and the outcomes. Three. That is out of every institution of higher education in the Commonwealth of Virginia. Every disciplinary case. Likely over multiple years. Three. And that’s only hearing one side of the story.

This harkens back to my original criticism of the founders of FIRE, when Alan Charles Kors and Harvey Silverglate wrote The Shadow University. As I explained to Dr. Kors at the time, I take exception to anyone who fields one side of a story, and then utilizes just a handful of those cases to generalize across an entire profession. Unlike the Center for Public Integrity (described in part two), there has been no thorough research conducted to support FIRE’s assertions. Instead, FIRE grasps onto anecdotes shaped to meet pre-determined conclusions.

Ultimately, the sub-committee voted to table the bill for this year, but the bill may certainly be resurrected in years to come. This is merely a temporary reprieve for a state I once called home.

What made this case different was the mobilization on the part of the higher education community. Higher education officials in Virginia produced statistics that put student conduct into its appropriate context, including the number of suspensions and dismissals issued by colleges and universities. Educators also provided information on student feedback of student conduct processes. Finally, the Association for Student Conduct Administration (ASCA) also filed a letter on behalf of Virginia colleges and universities, which I am re-printing in its entirety:

January 17, 2014

Dear Legislators in the Commonwealth of Virginia,

We are writing to you today as the President, President-Elect, and Executive Director of the Association for Student Conduct Administration (ASCA). ASCA is the premiere authority on Student Conduct and Conflict Resolution in Higher Education, with a current membership of over 2700 professionals at over 900 institutions of higher education across the U.S. and Canada. On Tuesday, January 14, 2014, conduct administrators from across the state of Virginia informed our association of proposed legislation in the form of House Bill No. 1123. This bill seeks to amend the Code of Virginia by adding Chapter 1 of Title 23 a section numbered 23-9.2:13, relating to students’ and officially recognized student organizations’ right to hire counsel and right of review of disciplinary decisions. This bill seeks to expand the role of legal counsel to allow students and organizations to be represented by attorneys in disciplinary processes where suspensions of more than 10 days or expulsions are possible outcomes, with exceptions for allegations of academic dishonesty cases.

If passed, there would be significant implications for the State of Virginia, including its students, their parents, and the institutions of higher education. While a common misperception is that the purpose of a conduct process and office is to punish students; the reality is that the most immediate and consuming responsibility is to educate students about their decision-making strategies and the impacts of their behaviors, remind them of the standards of the institution, and to impose consequences when appropriate to protect the campus community and to maximize the educational impact. This is a core function of institutions of higher education as we help students in their development as adults and into contributing citizens. Since our procedures are not designed to be punitive, they require that students be active participants in the process. As we will illustrate, the courts have historically agreed with our position that the conduct process within institutions of higher education should remain grounded in education and should not mirror criminal or civil processes.

This student conduct process is governed by many measures to protect students’ due process rights, while at the same time requiring their active participation as the consumers of their own education. As a profession, conduct officers are staunch defenders of student rights and make every effort to ensure a fair process. In 2011, ASCA celebrated 50th anniversary of the landmark Dixon v. Alabama State Board of Education court case, which is foundational to the procedural protections that conduct procedures offer to accused students. In addition to case law, campus conduct procedures are also governed by the Family Educational Rights and Privacy Act (FERPA), Title IX of the Higher Education Act, the Clery Act and others to protect student rights and to ensure a fair and equitable disciplinary process for all students including those accused of violating the institutional rules and regulations as well as those impacted by prohibited behavior.

House Bill NO 1123 equates a student disciplinary process with a criminal proceeding and permits students and organizations to be represented by an attorney rather than speak on their own behalf and personally engage in the learning process that occurs as a result of their matriculation through a campus conduct process. The representation of a student by counsel thereby distancing the student from any potential for personal learning, growth, and development violates the very purpose of an educational proceeding. Student conduct has evolved since the origins of American higher education, but the emphasis on student learning has never been greater. If attorneys are permitted to engage in the process at the level described by House Bill NO 1123 much, if not all, of that process will be lost and our campuses, and students, will be impacted negatively as a result. Since the implementation of the G.I. Bill, colleges and universities have strived to treat students as adults and as the keepers of their own educational future. This bill jeopardizes the progress that has been made over time and puts the higher education system of the state of Virginia at risk of graduating students who are underprepared for the workforce, service to their country, and engagement in a global world.

Having attorneys actively represent a student during the conduct and discipline process changes the nature and desired outcomes of a campus conduct proceeding. Attorneys are not focused on the education of their clients, as colleges and universities are. Over the last decade or so, universities have worked to move their discipline processes away from a legalistic approach, which is consistent with judicial precedent in most jurisdictions. Introducing attorneys into the process to represent a student would undermine these efforts and would completely remove any educational value for the student’s personal growth and development.

This shift also has the potential to slow down the student conduct processes drastically which specifically in cases involving sexual harassment, could cause the institution to be non-compliant with both the Office of Civil Rights (OCR) well publicized directives to institutions of higher education in their April 2011 Dear Colleague Letter and the Violence Against Women Act (VAWA) passed in March 2013. Both of these federal documents require institutions to provide prompt, fair and equitable processes to ALL students involved in campus hearing processes.

As a result of recent guidance from OCR on Title IX and the passage of the Violence Against Women Act, to be equitable and in compliance with federal guidance, institutions may need to provide an attorney for all parties involved in a given conduct matter. In the few institutions in which attorneys are allowed to fully participate in campus educational processes, many of those institutions have found the need to ensure the University is represented by counsel when the charged student has secured counsel. In addition, the addition of attorneys as representation in a campus administrative process would likely lead institutions to feel the need to invest more financial and personnel resources into training for hearing bodies to be able to discern differences between legalistic courtroom tactics and the procedures of the campus conduct process. These all lead to increased costs to colleges and universities and ultimately to taxpayers and/or students through tuition and fee increases.

As mentioned previously, the Office of Civil Rights issued a “Dear Colleague Letter” on April 4, 2011 that described university responsibilities to provide a process for resolving matters of sexual harassment and sexual misconduct that allows all participants to actively participate in the disciplinary process without impediment. It specifically states that “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” The participation of attorneys, as mandated by the state, may violate that expectation and put universities in direct conflict with existing federal guidelines. Additionally, the chilling effect on victims on reporting sexual harassment, sexual assault, rape, domestic violence, dating violence and stalking will be similar to what we see in the criminal process. Imagine being an 18-year-old freshman female student who was already victimized by another student. You report the information to your campus conduct office because you know you don’t want to face the cross examination of an aggressive attorney in the courtroom only to find that you will face the same thing through your campus conduct system. Most women will choose not to report, which will cause a decrease in accountability and most of these students will leave their institutions and transfer to another institution because they will not feel safe co-existing on a campus with their alleged attacker. It is a possibility for a student victim to initiate a campus disciplinary process and following an initial inquiry, the institution determines there is not enough evidence to hold an accused student responsible. At least, in this example, there was an opportunity for the student victim and the institution to address the alleged behavior. On the contrary, on a campus where students do not want to report because of fear of a quasi-criminal proceeding involving attorneys, the student victim chooses not to report, the safety implications continue to constitute a real threat to the campus and at a time when there is a great deal of national pressure for institutions to address significant safety concerns post Virginia Tech.

If you are not familiar with the intentional educational nature of campus conduct processes, I draw your attention to one of the foremost guiding documents associated with the administration of student conduct processes on campus, a Federal Rules Decision from September 18, 1968 entitled “General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax-Supported Institutions of Higher Education”. The decision was written by Judges William Becker, John Oliver, William Collinson, and Elmo Hunter. It applied to the Western District of Missouri, and has been widely accepted across the country. The General Order can be viewed at http://www.eric.ed.gov/ERICWebPortal/search/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED025805&ERICExtSearch_SearchType_0=no&accno=ED025805. The judges’ decision is summarized in the following manner:

“The discipline of students in the educational community is, in all but the case of irrevocable expulsion, a part of the teaching process. In the case of irrevocable expulsion for misconduct, the process is not punitive or deterrent in the criminal law sense, but the process is rather the determination that the student is unqualified to continue as a member of the educational community. Even then, the disciplinary process is not equivalent to the criminal law processes of federal and state criminal law. For, while the expelled student may suffer damaging effects, sometimes irreparable, to his educational, social, and economic future, he or she may not be imprisoned, fined, disenfranchised, or subjected to probationary supervision. The attempted analogy of student discipline to criminal proceedings against adults and juveniles is not sound.”

“Three minimal requirements apply in cases of severe discipline, growing out of fundamental conceptions of fairness implicit in procedural due process. First, the student should be given adequate notice in writing of the specific ground or grounds and the nature of the evidence on which the disciplinary proceedings are based. Second, the student should be given an opportunity for a hearing in which the disciplinary authority provides a fair opportunity for hearing of the student’s position, explanations and evidence. The third requirement is that no disciplinary action be taken on grounds which are not supported by any substantial evidence. There is no general requirement that procedural due process in student disciplinary cases provide for legal representation, a public hearing, confrontation and cross-examination of witnesses, warning about privileges, self-incrimination, application of principles of former or double jeopardy compulsory production of witnesses, of any of the remaining features of federal criminal jurisprudence (emphasis added).”

The General Order isn’t the only time courts have spoken on this matter. In Wasson v Trowbridge (1967) the court offered a recommendation in support of non-legal processes in the educational setting when the proceeding is non-criminal in nature, where the hearing is investigative, not adversarial and the government does not proceed through counsel. In 1975 in Nzuve v Castleton State College, the courts ruled that educational institutions have both a need and a right to have their own campus standards. An additional decision in Gorman v University of Rhode Island (1988) indicated that “in fostering the requirement of due process, the court offered that a fair campus process should not necessarily have to follow traditional common law adversarial method. The procedural question was whether the individual had had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial. The court goes on to say, beyond the right to notice and hearing, procedural protections to ensure fairness are uncertain and must be determined by a careful weighing or balancing of the competing interests surrounding the case (p.14). The Gorman court went on to say that courts should not extol ‘form over substance’ and impose on educational institutions all of the procedural requirements associated with common law criminal trials.

Finally, in Osteen v Henley (1993) the court wrote, “Even if a student has a constitutional right to consult counsel—an issue not foreclosed by Baxter, as we shall see—we don’t think he is entitled to be represented in the sense of having a lawyer who is permitted to examine or cross-examine witnesses, to submit and object to documents, to address the tribunal, and otherwise to perform the traditional function of a trial lawyer. To recognize such a right would force student conduct proceedings into the mold of adversary litigation. The university would have to hire its own lawyer to prosecute these cases and no doubt lawyers would also be dragged in—from the law faculty or elsewhere to serve as judges. The cost and complexity of such proceedings would be increased, to the detriment of discipline as well as of the university’s fisc.” The court went on to say that “the danger that without procedural safeguards deemed appropriate in civil and criminal litigation, public universities will engage in an orgy of expulsions is slight. The relation of students to universities is, after all, essentially that of customer to seller. That is true even in the case of public universities, though they are much less dependent upon the academic marketplace than private universities…” (pp.225-226).

Members of ASCA from the state of Virginia are implementing a letter writing campaign to their representatives and senators to express their concern and national concern with this bill. The proposed bill will fundamentally change the way student conduct work is done on college campuses in Virginia and will detrimentally affect the safety and security those campuses can provide for their students as they will be forced to have long delays and will most definitely experience a chilling effect on reporting of cases like sexual misconduct, drugs, physical violence, weapons offenses, and many other forms of concerning behavior that would have otherwise been reported on their campuses.

Given the above implications on the procedures that we employ on a daily basis, as well as our collective commitment to supporting the rights and experiences of ALL students on our campuses, we discourage you from passing this bill. We believe it will negatively affect the quality of education in your state and encourage further reflection before considering the passing of this bill. Please consider joining us in our efforts to keep our campuses safe and to maintain a fundamental educational process at your state’s institutions.

Should you have any questions in regard to this bill and its impact on our work, please feel free to contact us at (chrisl@dso.ufl.edu) or Dr. Matt Gregory at (mgregory@lsu.edu).

Sincerely,

Jennifer Waller, PhD
Executive Director
The Association for Student Conduct Administration

Chris Loschiavo, JD
President
The Association for Student Conduct Administration (ASCA)

D. Matthew Gregory, PhD
President-Elect
The Association for Student Conduct Administration (ASCA)

As I have previously noted, the Osteen v. Henley (1993) case is one I give great credence to, as it is a Circuit 7 decision (of which I am a part), and acknowledges situations in which the attendance of an attorney, but not their participation, may be appropriate. I don’t believe in allowing attorneys to participate in campus conduct processes, but I also don’t believe in keeping them entirely out; the fact is that the presence of an attorney can be of value to a student (and not be a hindrance to an institution) with respect to any pending concurrent criminal or civil issues in which the student’s participation in the student conduct process may become problematic. But FIRE’s solution, based solely on unsupported allegations, is not a starting point for any conversations of this issue.

Implications for Administrators

It seems clear that FIRE is now looking to take this issue and shop it state by state. This approach is very similar to the effort in the 1990’s to open all student conduct proceedings and records to the public. In that case, battles were fought state by state until the issue reached into Ohio, at which time the federal government intervened and ultimately student conduct records were clearly noted as records subject to protection under the Family Educational Rights and Privacy Act (FERPA). In this case however, there is no overriding and compelling federal interest that is likely to result in federal intervention. Instead, this issue is likely to find its way into many state legislatures for years to come.

Rather than wait for this battle to come to your state, my advice to practitioners is to begin working now within your campus conduct process to prepare for future bills, and getting general counsels to begin thinking about responses in advance, as well as to work across institutions to form a united response. Of course having institutional presidents arguing the point will be valuable in fighting similar state legislation as well. Equally important, however, is to consider how to mobilize student and parent voices to weigh in on the discussion as well.

Here is a small list of things that can be done to prepare for such a discussion in your own state:

1. Keep detailed and updated statistics on student conduct processes. We are already required to report on a wide variety of items by virtue of federal and/or state law, but noting the number of cases and students, as well as sanction outcomes, will be valuable in creating a realistic context for any discussion.
2. Educate upper administration and institutional legislative liaisons on the fundamentals of student conduct processes, and put these people in a position to respond early to the introduction of any legislation.
3. Insure that websites and physical documentation on due process rights is clear, up to date, and easily available.
4. While the details of student conduct proceedings are confidential, the process is not and should be as transparent as possible. Publishing institutional policies, procedures, flow charts, and statistics in a way that will provide a quality education to an external audience is crucial. Consider providing special web pages directed at target audiences such as parents and attorneys.
5. If a bill is introduced, it is critical that higher education be represented in any committee proceedings. Identify experts both in your state and outside to serve as expert witnesses for committee hearings. Pass these names through your general counsel and legislative liaison.
6. Seek to identify what legislators think might be gains from such legislation that might not be in opposition to our educational processes. If possible, ask individual legislators to attend actual disciplinary proceedings (with appropriate consent, of course).
7. Seek the support and assistance of ASCA as a national voice for the profession.

There are no doubt other means for preparing, but this list is a good place to start, and allows practitioners to be proactive rather than reactive when such bills are introduced. It is entirely possible that a member of Congress may also seek to introduce federal legislation, in which case all of these efforts will need to be ramped up on a national level. I think the only safe conclusion is that FIRE’s efforts on this front have only begun, and we must work hard and work together to insure the integrity and educational value of student conduct processes for the current and future generations of students.

A special thanks to Josh Bacon of James Madison University for sharing his observations and insights with his colleagues.

(Part Two will be published on Thursday, and will focus on FIRE and the media teaming up to create hysteria around campus sexual assault processes.)