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Student Conduct Hearings in a University Setting: Just or Unjust?

Administrative Law

When determining the amount of due process that should be afforded to a state university student during a disciplinary proceeding, the U.S. Supreme Court has laid out three factors that courts should consider: 1) the seriousness of the charge and potential sanctions; 2) the danger of error and the benefits additional procedures would provide; and 3) the public or governmental burden if additional procedures were mandated.1 These factors are used by both federal and state courts when reviewing a case alleging a due process violation stemming from a student’s conduct. However, the due process standard for student disciplinary hearings is certainly not a high bar to reach. The Supreme Court has noted the requirements mandated by the Due Process Clause of the 14th Amendment affords a lesser standard than a reasonably minded school administrator would impose upon himself in order to avoid unfair decisions.2

A student misconduct hearing differs exponentially from a criminal or civil trial. While universities employ certain measures to supply an equitable and fair process, the powers afforded to an attorney defending a student are severely restricted during a student conduct hearing procedure. This article provides an overview of a typical university’s student conduct hearing procedure, highlights the evidentiary standards used, discusses the restraints placed on an accused student’s counsel during the process, and concludes with suggestions for improvements to the process.

Overview of Student Misconduct Hearing Process
In Florida, a university’s hearing procedure is established by the school president and does not adhere to the same due process procedural requirements provided by a court of law or under the Florida Administrative Procedure Act.3 Constitutional due process is not lost or waived during a student conduct hearing, however, the due process requirements have been interpreted and applied differently, specifically in referencing what procedures are required during a student conduct hearing to satisfy constitutional due process. The Florida State University’s Student Conduct Code contains provisions governing the student misconduct hearing process that are similar to those at most state universities today.4 The process begins when the charged student is given written notice of the student conduct code (SCC) charge(s) and the allegations on which those charges are based.5 The charges stem initially from either a written statement by the complainant to the university’s Office of Student Rights and Responsibilities or via a police report.6 The written notice is required to provide “sufficient detail to prepare a defense” and must include the source from which the information was gathered; the alleged violation(s); and the specific charges that constitute an SCC violation.7 Within the initial written notice, the accused student is also given the option to attend an information session in which he or she will receive instruction on the process; their rights during the procedure; and confirm the forum in which the case will be heard.8 The information session is also a fundamental step in the accused student’s defense. During this session, the student is notified exactly what he or she is being charged with, and any initial reports or evidence can be viewed.9 Evidence discovered or gathered at a later time can be viewed before the hearing.10

While in certain cases the student is given the right to choose between a formal hearing and informal hearing, in any case involving a disputed question of fact or serious alleged violation (a violation that could lead to separation of the charged student from the university), a formal hearing is required.11 During an informal hearing, a student can mediate the situation with an administrative officer directly; however, during a formal hearing process, procedures vaguely similar to trial take place.12 A formal hearing process is typically outlined in this manner:

• Presentation of formal charges.

• Opening statement by the university, followed by the opening statement of the charged student.

• Presentation of evidence and witnesses by the university, followed by questions of those witnesses by the hearing body and the charged student.

• Presentation of evidence and witnesses by the charged student, followed by questioning by the hearing body and the university.

• Questions directed to the charged student by the hearing body.

• Closing statements.

The hearing body itself can be chosen in numerous ways. While the charged student is often allowed to choose the type of hearing body that will administer the process, the university reserves the right to choose the appropriate hearing body for administrative or case-related reasons.13 A charged student may challenge the impartiality of any member of a hearing body.14

During cases that may be traumatic in nature for the complainant, such as a sexual assault case, the complainant can request not to be present during witness questioning by the charged student, as long as it does not hinder the charged student’s fundamental due process rights.15 According to the student conduct code, it is not a violation of due process if the charged student is unable to question the complainant or a witness, as long as either has provided a written statement that the charged student was able to view in advance.16 In certain cases, a complainant has the right to appear and call their own witnesses at the proceeding, which may include the charged student.17

During all hearing processes, a reasonable person standard is used when assessing the information. The evidentiary standard employed by Florida State University and most university student conduct codes is the “preponderance of the evidence” standard. Therefore, the evidence itself must show that it was more probable than not that such violation occurred. While this evidentiary standard is not required in all student misconduct cases, a university that receives federal funding is governed by Title IX standards, and is required to employ a “preponderance of the evidence” standard in sexual misconduct cases.18

Following the hearing, the hearing body issues a recommended decision to its authority, which is often either the dean of students or director of student rights and responsibilities. The charged student or complainant is allocated the right to appeal the decision.19 If there is an appeal, an appellate officer holds the right to make a determination based solely on review of the hearing’s summary files.20 Based on the outcome of this file review, a decision is made whether to allow a full appeal process. Only clear violations of due process that affected the hearing, demonstrated prejudice against a party by any member of the hearing body, new information, or a lack of evidence to support a finding with regard to responsibility are sufficient grounds for an appeal.21

While this overview of the student conduct hearing process seems to provide a fair and equitable hearing process, various rules place significant restrictions on the defense, and most significantly on the accused’s advisor/counsel. During student misconduct hearings, an advisor may accompany the charged student, complainant, or any witnesses.22 However, the advisor is not allowed to speak on behalf of the student or witness he or she represents and may only consult the student briefly in a manner that does not disrupt the proceeding process.23 An advisor will be given any reports or information; however, they are required to attend the informational sessions to the evidence being presented against their client and must review the file in the Office of Student Rights and Responsibilities with the dean present. The student’s counsel also should review the evidentiary file within the last 24 hours prior to the hearing, as objections can be made to any additional evidence that was gathered less than three days prior to the initial hearing.

Although the right to counsel for any complainant, charged student, or witness is stated, a university may reserve the right to revoke the right to counsel.24 Specifically, Florida State University’s Student Conduct Code states:

The term “advisor” means any one person chosen by the charged student, complainant, or any witness to assist throughout the student conduct process, unless service in this capacity would unreasonably conflict with the fair administration of the student conduct process as determined by the [d]irector (or designee) of the Office of Student Rights and Responsibilities.25

These examples of reserved rights seem very prevalent throughout the student conduct code and could be argued to provide a “catch-all” mechanism that would disallow for any violation of due process. Past caselaw shows the only time a violation of due process in student misconduct hearings can occur is when a hearing body ignores its rules promulgated within its own university or agencies bylaws.26

The student conduct code also includes specific statements of what constitutes a violation of due process. For example, although a charged student is allowed the right to question a witness in the hearing process, it does not constitute a violation of due process if the witness does not attend the hearing and provides a written statement to the hearing body in advance.27 Since the charged student is allowed the opportunity to review and respond to the written statement, it is not considered a due process violation. However, these witness statements are not required to be sworn or in an affidavit form.28 This creates what seems to be a witness cross-examination/confrontation loophole: the complete inability to cross-examine or confront the charged student’s accuser.

Many courts have held that denying the right to cross-examine the accuser or prohibiting the accused’s counsel from participating in the hearing process does not violate due process, and that the burden upon the university outweighs the potential benefits formal procedure would provide the student.29 However, the U.S. Supreme Court has stated that student hearings involving potential long-term suspension or expulsion sanctions may require more formal procedures.30

Impact of Title IX Upon Disciplinary Hearings
Florida universities are given free rein to establish their student conduct codes as they please as long as they provide equitable and fair rules. The adequacy of the due process procedures allocated to the charged student are a concern in all student misconduct hearings involving severe consequences. Hearings concerning sexual misconduct are of particular interest due to the recent publicity such hearings have generated and the additional statutory obligations imposed by Title IX. The Title IX guidelines are contained in the U.S. Department of Education’s Office for Civil Rights’ 2011 “Dear Colleague Letter.” These guidelines include a requirement that a university must follow-up on any alleged complaint by a student victim involving sexual misconduct, whether the incident occurred within the school’s territory or not.31 The guidelines also require a fair and equitable standard for the investigation in which witnesses may be presented and evidence reviewed, similar to the formal hearing structure of most student conduct codes.

While Title IX specifically states that the university’s system is required to have a fair and equitable grievance procedure free of any form of perceived bias on behalf of a hearing body officer, the argument could be made that any university-related official conducting such a hearing could be biased. Title IX only poses a single express enforcement mechanism, and that is an administrative procedure that would result in the withdrawal of federal funding from noncompliant institutions.32 Although Title IX requires a grievance procedure to satisfy a form of due process for the alleged sexual harasser, it also requires that institutions receiving federal funding take immediate and effective steps to stop any form of alleged sexual harassment, prevent any recurrence of such violation, and eliminate a sexually hostile environment for the complainant. Title IX coordinators are not allowed to be involved in the actual grievance procedures once they have informed the university they need to take proper steps to handle a situation of sexual misconduct, but they do examine the entirety of the procedure to make sure it aligns with the requirements of Title IX. Specifically, Title IX coordinators are employed to be independent in their role and are not allowed to be on the grievance procedures disciplinary board or any legal general counsel, which may result in a conflict of interest.33

Limitations Placed on Legal Counsel
The main issue surrounding student misconduct procedures is the restraint placed upon a student’s counsel. Whether referred to as counsel, advisor, or student defender, an attorney’s ability to adequately defend his or her client’s interest is significantly suppressed in comparison to a regular courtroom setting. For example, both Florida State University’s and the University of Florida’s student conduct codes state that the student’s advisor may not participate directly in the hearing procedure.34 The furthest extent a student’s advisor can participate within the hearing setting is by consulting with his or her client in a manner that does not disrupt the hearing procedure. The advisor can write questions and then hand the questions directly to their client to ask; however, the advisor may not speak directly to the hearing body unless instructed to specifically by the hearing body. Since the hearing body has the authority to remove the student’s counsel upon multiple consultations between the counsel and student during the course of the hearing, an attorney should be cautious when attempting to defend his or her client’s interests during the hearing.

The attorney certainly can aid in the writing of statements and, more importantly, in the written request for an appeal following the initial hearing decision. This written request is extremely important as it must address specifically either that the initial hearing led to a violation of the student’s due process rights, a prejudicial conflict of interest, or that new information has arisen that would substantially affect the outcome of the case.35 The appellate officer will then compare this written appellate request with the initial case file summary of the hearing and decide whether an appeal is appropriate for either party.36

Raising the Student Misconduct Hearing Bar
One issue that should be addressed is whether it is truly a substantial burden on university to provide sufficient training for a hearing administrator to be competent to preside over hearings with full confrontation and cross-examination rights afforded the student charged with misconduct. While universities emphasize the heavy burden such a requirement would impose on them, they neglect to recognize the severity of the possible sanctions on the student charged with a violation. Given the severity of the sanctions, which can include expulsion, it seems reasonable to require universities to train the administrative body to handle the small number of hearings involving serious allegations, or bring in an unbiased former judge who is equipped to handle the cross-examination procedures.37

With the attorney’s powers being limited to undisruptive minor consultation during the hearing and aiding the writing process for evidentiary statements or appeal request, it appears that state universities wish to suppress the student’s attorney privileges to the lowest bar that will not violate due process. There must be a better system and body of rules to protect the accused student’s rights and future. The decisions made by these university hearing officials will forever impact a student’s career, education, and life. Every effort should be taken to ensure a fair and equitable hearing will be provided while adhering to more than the bare minimum requirements. While it may be the case that due process is being afforded according to the lowest possible constitutionally allowable standards, the bar must be raised.

1 See Ingraham v. Wright, 430 U.S. 651 (1977); Mathews v. Eldridge, 424 U.S. 319 (1976); Goss v. Lopez, 419 U.S. 565 (1975). Federal district and circuit courts, as well as numerous state courts, guided by Mathews, Goss, and Ingraham, have themselves reviewed countless disciplinary due process claims brought by students and faculty. Ingraham, applying Mathews, instructs that in determining the amount of process due, courts are to look at three factors: 1) the nature of the private interest affected — that is, the seriousness of the charge and potential sanctions; 2) the danger of error and the benefit of additional or alternate procedures; and 3) the public or governmental burden where additional procedures mandated. Ingraham, 430 U.S. at 676-82. Through these vague guideposts and their application to specific procedural regimes, a general outline of what’s required comes into focus. See Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir. 2005).

2 Goss, 419 U.S. at 583.

3 Florida universities and community colleges follow different procedures than other administrative agencies. See Morfit v. Univ. of S. Fla., 794 So. 2d 655, 656 (Fla. 2d DCA 2001). “In any proceeding in which the substantial interests of a student are determined by the state university system or a community college district, [§§]120.569 and 120.57 (the general due process provisions of the Administrative Procedure Act) do not apply.” Id. Fla. Stat. §120.81(1)(g). Rather, pursuant to F.A.C.R. 6C–6.0105(1), each university president is directed to “establish university rules that ensure fairness and due process in student disciplinary proceedings and that guarantee the academic integrity of the university.” F.A.C.R. 6C–6.0105(1). An agency violates a person’s due process rights if it ignores rules promulgated thereby which affect individual rights. See Matar v. Fla. Int’l Univ., 944 So. 2d 1153, 1157 (Fla. 3d DCA 2006) (citing Armesto v. Weidner, 615 So. 2d 707, 709 (Fla. 3d DCA 1992)).

4 See Fla. State Univ. Student Conduct Code 6C2R-3.004.

5 Id. at 11.

6 Id.

7 Id. at 12.

8 Id.

9 Id.

10 Id. at 23.

11 Id. at 14 (all cases involving sexual misconduct or assault require a formal hearing and decision-making panel at FSU).

12 Id.

13 Id. at 14.

14 Id. at 15.

15 Id.

16 See id. at 15 (“[T]he inability of the charged student to question a witness who has provided a written statement is not a violation of the due process rights of the charged student, as the charged student has the opportunity to review and respond to the written statement and may offer evidence to rebut the witness statement and other evidence presented at the hearing.”).

17 Id. at 18.

18 See U.S. Department of Education, Office of Civil Rights, Dear Colleague Letter (Apr. 4, 2011), available at

19 Fla. State Univ. Student Conduct Code 6C2R-3.004 at 21.

20 Id. at 23.

21 Id. at 22-23.

22 Id. at 16.

23 Id.

24 Id. at 3.

25 Id.

26 Armesto v. Weidner, 615 So. 2d at 709 (an agency violates a person’s due process rights if it ignores rules promulgated thereby which affect individual rights).

27 Fla. State Univ. Student Conduct Code 6C2R-3.004 at 16.

28 Id.

29 See Furey v. Temple Univ., 730 F. Supp. 2d 380, 398 (E.D. Pa. 2010) (citing Flaim, 418 F. 3d at 640-641). Counsel was unnecessary for a hearing that was not procedurally complex and that cross-examination would add no value as the student had admitted his felony conviction. See Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925 (6th Cir. 1988) (concluding that the burdens of cross-examination outweighed the benefits, as administrators are not well-equipped to oversee the process of cross-examination); Winnick v. Manning, 460 F.2d 545, 549 (2d Cir. 1972) (rejecting cross examination because it is not generally considered essential for due process and would serve no useful purpose in the case at issue). But see Gabrilowitz v. Newman, 582 F.2d 100, 106 (1st Cir. 1978) (requiring assistance of counsel due to potential compromise of the student’s rights due to a pending criminal proceeding arising from the same events).

30 Goss, 419 U.S. at 584.

31 See U.S. Department of Education, Office of Civil Rights, Dear Colleague Letter (Apr. 4, 2011).

32 Title IX’s only express enforcement mechanism, 20 U.S.C. §1682, is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 247 (2009).

33 See U.S. Department of Education, Office of Civil Rights, Dear Colleague Letter at 7 (Apr. 4, 2011) (“The Title IX coordinators should not have other job responsibilities that may create a conflict of interest. For example, serving as the Title IX coordinator and a disciplinary hearing board member or general counsel may create a conflict of interest.”).

34 See Univ. of Fla. Student Honor Code & Student Conduct Code 4.042 (“An advisor’s attempt to participate in a review or hearing by speaking, presenting information or otherwise intervening in the proceeding is grounds for the advisor being required to leave. In such event, the hearing or review will continue without the advisor present, and the advisor’s absence shall not require a delay or affect the validity of the proceedings.”); Fla. State Univ. Student Conduct Code 6C2R-3.004 (“The term ‘advisor’ means any one person chosen by the charged student, complainant, or any witness to assist throughout the student conduct process, unless service in this capacity would unreasonably conflict with the fair administration of the student conduct process as determined by the [d]irector (or designee) of the Office of Student Rights and Responsibilities.”).

35 Fla. State Univ. Student Conduct Code 6C2R-3.004.

36 Id.

37 This is similar to the student misconduct hearing against Jameis Winston at Florida State University. This was also the only time when a former judge was utilized as the administrator of the hearing. Mr. Jansen represented Mr. Winston in the criminal case but not the student hearing.

R. Timothy Jansen is a nationally recognized criminal defense lawyer, legal commentator, and analyst with appearances on Greta, Geraldo, Nancy Grace, and CNN. He is a certified NFL agent and former federal prosecutor who concentrates his practice on federal and state criminal defense in Tallahassee. He represents professional, collegiate, and high-school athletes and coaches, including student conduct hearings at universities.

This column is submitted on behalf of the Administrative Law Section, Richard J. Shoop, chair, and Stephen Emmanuel, editor.

Administrative Law