This guide is modeled on Illinois State University’s “Disciplinary Guide for Attorneys.” Adapted with permission of Illinois State University.

 

If you have been retained by a Rutgers student to provide assistance in a disciplinary matter, this guide will provide you with important information about the University Code of Student Conduct (UCSC) and your role in the Rutgers student conduct process. Please keep in mind that the University conduct system is very different from the civil or criminal judicial system. The University’s process is not adversarial; its purpose is to educate the student and contribute to their ethical growth.

The General Order on Judicial Standards of Procedures and Substance of Student  Discipline in Tax Supported Institutions of Education (44F.R.D. (142) (W.D. Mo.)) states: “ … The attempted analogy of student discipline to criminal proceedings against juveniles and adults is not sound. The nature and proceedings of the (campus) disciplinary process … should not be required to conform to federal processes of criminal law, which are far from perfect, and designed for circumstances and ends unrelated to the academic community.”

Students are expected to act as their own advocates throughout the student conduct process. Some students may choose to hire an attorney, but the attorney’s role is limited to consultation. The attorney may be present during all proceedings as a support person, but cannot address Conduct Officers or Hearing Boards, speak in hearings, or question witnesses. Students do not have a Constitutional right to active legal representation in university disciplinary cases (see Hart v. Ferris State 557 F. Supp. 1379, 1386-88 (W.D. Mich, 1983).

Both the complaint party and the accused student are entitled to the assistance of a Campus Advisor, a member of the University community who can help the advisee prepare their case and navigate the conduct system. The Office of Student Conduct maintains a list of advisors who have been trained in the Rutgers process.

Q: I have been asked to represent a student accused of violating Rutgers policy. How do I establish representation with the University?

A. The student must notify the Office of Student Conduct and provide written authorization for you to have access to information about the case. A release authorization form is available here (PDF). If the student intends to have you attend a proceeding as a support person, they must notify the Office of Student Conduct in writing.

The Office of Student Conduct will correspond at all times directly with the student, and not through any third party. You may receive copies of correspondence with the student’s authorization.

Q: What is my role in the student conduct process?

A. The Code of Student Conduct permits attorneys to be present at all disciplinary proceedings as a support person. A support person may not actively represent the student, question witnesses, or address the Hearing Board. You may discreetly advise your client, provided your interaction does not disrupt the process.

Q: As an attorney, can I serve as the student’s Campus Advisor?

A. If you are a member of the University community (student, faculty, or staff), you may act as the student’s Campus Advisor. Otherwise, you may serve only as a support person.

Q: What is the University's standard of proof?

The standard of proof in cases involving academic dishonesty is “clear and convincing information.” In all other cases, the standard is “a preponderance of information.”

Q: When will I receive discovery?

A. There is no formal discovery under the University Code of Student Conduct. Both complaint parties and accused students are accorded reasonable access to the case file. If you and your client would like to review the case file, the student should call 848-932-9414 to make an appointment.

Both the complaint party and the accused student will have the opportunity to add information and/or a witness list to the case file. Both the complaint party and the accused student will be notified if the other party submits information or a witness list.

The accused student and the complaint party may also petition the Conduct Officer in writing to summon additional witnesses or request that information not in the case file be provided.

Q: When will I have the opportunity to depose witnesses?

A. There are no depositions under the University Code of Student Conduct. Neither the complaint party nor the accused student (or their representatives) should approach the other party’s witnesses prior to a proceeding. All questioning of witnesses takes place during the proceeding.

Q: Can I get the proceeding postponed?

A. The student may submit a written request for postponement for good cause. The Presiding Officer or Director of Student Conduct will determine whether the request will be granted. The availability of a support person or a specific Campus Advisor is not sufficient grounds for postponement.

Q: Can the student be charged with a violation of University policy for behavior that occurs off-campus?

A. The University reserves the right to take necessary and appropriate action to protect the safety and well being of the campus community, including taking disciplinary action against students whose behavior off-campus indicates they pose a substantial danger to others in the University community. See the University Code of Student Conduct, Part IV (“Jurisdiction and Authority”), Sections A and I, for more information.

A 1989 opinion of the Maryland Attorney General (“Authority to Discipline Off-Campus Misconduct,” No. 89-002) addressed pertinent constitutional issues at public institutions (private schools have more latitude to define standards of student conduct, as part of the contract of enrollment). Furthermore, the General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133, 145 (W.D. Mo.1968) states, “In the field of discipline, scholastic and behavioral, an institution may establish any standards reasonably relevant to the lawful missions, processes, and functions of the institution … Standards so established may apply to student behavior on and off campus when relevant to any lawful mission, process, or function of the institution. By such standards of student conduct the institution may prohibit any action or omission which impairs, interferes with, or obstructs the missions, processes and functions of the institution.”

Q: My client is charged with a crime off-campus. Can I get the proceedings delayed until the criminal matter is resolved?

A. The student may request a postponement, but pending criminal charges will not ordinarily serve as a basis to postpone a University disciplinary proceeding. The purpose of the University’s process is not to determine whether a student has violated the law; it is to determine whether a student violated University policy.

A University disciplinary proceeding need not be postponed in order to preserve a student’s Fifth Amendment rights in a subsequent criminal case—the student may exercise their right to remain silent.

Q: Why would the university act on allegations of sexual assault prior to the criminal proceeding?

A. The U.S. Department of Education Office of Civil Rights guidelines require a “prompt investigation” of allegations of sexual harassment—including sexual assault.

Q: Why isn’t the student afforded the same due process protections that would be provided in a criminal proceeding?

A. The courts have long recognized that the interests of the University community differ from those of the criminal justice system. A significant body of case law has been established that outlines basic expectations of fairness in any student disciplinary process. See below for a list of relevant publications and case law.

Q: What will happen if my client refuses to participate in the University’s disciplinary process?

A. The process will continue with or without the student’s involvement. A student who fails to appear at a proceeding after proper notice has been given will be deemed to have answered “not responsible” to all charges. The student may not use their refusal to participate as grounds for appeal.

Q: Is the proceeding recorded? Can I get a transcript?

A. The Office of Student Conduct makes an audio recording of each University Hearing, Administrative Conference, and Disciplinary Conference. No other party may record the proceedings.The student can submit a written request for a copy of the audio recording, but the Office of Student Conduct does not provide transcripts.

Q: What are the student's rights of appeal?

A. The student can appeal the finding and/or the sanction to the Campus Appeals Committee. Appeals are decided on the basis of the record and written submissions; the parties do not appear before the committee. An appeal does not entail a new hearing or conference or the taking of additional testimony. Appeals are considered only on the following grounds:

  • A sanction grossly disproportionate to the offense
  • The discovery of new and significant evidence unavailable at the original proceeding
  • Procedural errors so substantial as to effectively deny the accused student a fair disciplinary process
  • A finding of responsibility unsupported by evidence

Publications

The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? by Robert Bickel and Peter Lake, Carolina Academic Press (1999)

The Law of Higher Education (5th edition) by William Kaplin and Barbara Lee, Jossey–Bass Publications (2014)

2009 Cumulative Supplement to the Law of Higher Education (4th Edition) by William Kaplin and Barbara Lee, National Association of  College and University Attorneys (NACUA) (2009)

Case Law

Dixon v. Alabama State Board of Education (1961, 5th Circuit)

Esteban v. Central Missouri State College (1969, 8th Circuit)

Ewing v. Regents of University of Michigan (1985, 6th Circuit)

Goss v. Lopez (1975, U.S. Supreme Court)

Hart v. Ferris State 557 F. Supp. 1379, 1386-88 (W.D. Mich, 1983)

Krasnow v. Virginia Polytechnic Institute (1977, 4th Circuit)

Osteen v. Henley (1993, 7th Circuit)

Paine v. Board of Regents of the University of Texas System (1973, 5th Circuit)

Soglin v. Kauffman (1969, 7th Circuit)

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