Following the rules: College codes of conduct

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By Mark Weiker

A school’s 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 nonacademic behavior (e.g. alcohol or drug violations, hazing, harassment, sexual assault).

Courts view codes of conduct as contracts between students and colleges and hold that students agree to the terms of these contracts when they enroll.

The terms can be surprising and regularly catch students off guard. Unfortunately, many students usually don’t read the “contract” until after they have been accused of an infraction.

Students implicitly sign this contract when they step on campus and pay tuition. The code may not be delivered directly to the student and may live online where the educational institution directs students to view it.

It does not have to be signed, but students and schools are bound by the code. Codes of conduct can regulate some off-campus activity.

Courts have held this to be a proper extension of the school’s jurisdiction so long as the school properly identifies the prohibited, off-campus behavior in the code of conduct and there is some connection between the behavior and campus.

For example, colleges may impose sanctions for out-of-control parties (in which other students attend), stalking or harassment of another student off-campus or actions that demonstrate unprofessionalism.

Violation proceedings

Students accused of violating a code of conduct can usually elect to proceed to a hearing. The hearing may be held in front of a panel or before a single school administrator, sometimes at the student’s choice.

If a hearing is selected, both the student and the university (through a professor, T.A., or other university administrator) may present evidence and documents, identify witnesses and have witnesses attend the hearing.

Regardless of the alleged conduct, the “preponderance (greater weight) of the evidence” standard is universally applied during code of conduct hearings.

This means that it is more likely than not that the alleged violation occurred. This is different than the “beyond a reasonable doubt” standard used in courts in order to determine guilt that most people are familiar with.

Very little evidence may be used to find a violation. This can be a rude awakening, especially for students charged with violations that may result in a substantial suspension or dismissal.

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 a violation occurred.

Some schools impose monetary fines for code of conduct violations. Fines can range from nominal amounts to several hundred dollars.

Schools cite fines as a deterrent to unwanted behavior, although the practice has raised some ethical questions in the last few years.

Students can appeal a code of conduct violation finding, but the time to appeal a panel decision can be very short, often between three and seven days.

You may lose your right to an appeal simply by taking too long to check your mail or consult with an attorney.

Using an attorney

Generally, students can consult counsel, but codes of conduct may limit the use of an attorney.

Even for public universities, courts have determined that students do not have an absolute right to counsel in code of conduct proceedings.

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.”

Your school may allow you to use an attorney, but in an “advisory capacity” only.

This means that the attorney can advise you, but cannot speak on your behalf. This is commonly called “potted plant” representation.

Attorneys may not be allowed at all for purely academic issues (e.g., grade appeals). Private schools may also prohibit the use of attorneys because certain constitutional due process protections may not apply.

In such circumstances, it may seem that hiring an attorney is futile.

But an attorney can help in a number of ways: he or she can help you understand the risk involved in requesting a hearing versus accepting responsibility; help you prepare questions and evidence; identify additional protections that may exist (e.g., protections for disabled students, minimal constitutional due process standards, etc.); and provide guidance throughout the hearing itself.

There are also several factors to consider if you are facing a pending criminal charge in addition to a code of conduct violation. When procedural errors do occur, attorneys can help students properly identify the errors and file an appeal.

(This information was provided by the Ohio State Bar Association. Mark Weiker is a partner at Albeit Weiker, LLP in Columbus where he focuses his practice on school law, representing students, parents, educators and school employees.)

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