representing students in the university setting
TRANSCRIPT
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Representing Students in the University Conduct Process
Latavia S. Alexander, Esq.December 2, 2015
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Let’s See What You Already Know
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+Overview
Historical Perspective North Carolina General Statute § 116-40.11 & UNC
General Administration Policy 700.4.1.1(R) Conduct Process Things to Remember Questions
+ Foundational Case Law Dixon v. Alabama, 294 F. 2d 150 (5th Cir. 1961) Goss v. Lopez, 419 U.S. 565 (1975) General Order on Judicial Standards of Procedures and
Substance of Student Discipline in Tax-Supported Institutions of Education, 45 F.R.D. 133 (W.D. Mo. 1968)
Gorman v. University of Rhode Island, 837 F. 2d 7 (1st Cir. 1988)
Schaer v. Brandeis University, 432 Mass. 474 (2000) Furey v. Temple University, 730 F. Supp. 2d 380 (E.D. Pa.
2010)
+ Dixon v. Alabama
Took place within the context of the Civil Rights Movement
Six African-American students expelled from Alabama State College. Students earlier had attempted to be seated at a segregated lunch counter in a public building
State authorities had ordered expulsion of the students Expulsion letters delivered by college president and did
not indicate any specific violations of school policy Students did not have opportunity to defend themselves
or know their alleged violations
+ Dixon v. Alabama District Court found for the state, finding that no law or
regulation required notice and a hearing prior to expulsion State argued to the Court of Appeals:
"Attendance at any college is on the basis of a mutual decision of the student's parents and of the college. Attendance at a particular college is voluntary and is different from attendance at a public school where the pupil may be required to attend a particular school which is located in the neighborhood or district in which the pupil's family may live. Just as a student may choose to withdraw from a particular college at any time for any personally-determined reason, the college may also at any time decline to continue to accept responsibility for the supervision and service to any student with whom the relationship becomes unpleasant and difficult."
+ Dixon v. Alabama In a 2-1 decision, 5th Circuit overturned the district court “Whenever a governmental body acts so as to injure an
individual, the Constitution requires that the act be consonant with due process of law.”
“One may not have a constitutional right to go to Bagdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.”
Required public institutions to require notice and a hearing prior to serious disciplinary action.
Severe blow to in loco parentis.
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UNC Wilmington vs. Sigma Alpha Epsilon Fraternity
HOW DID WE GET HERE ? Drag picture to placeholder or click icon to add
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+ N.C. Gen Stat § 116-40.11 Disciplinary proceedings; right to counsel for students and organizations(a) Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented, at the student's expense, by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or non-attorney advocate in either of the following circumstances:
+ N.C. Gen Stat § 116-40.11 Exceptions:
(1) If the constituent institution has implemented a "Student Honor Court" which is fully staffed by students to address such violations.(2) For any allegation of "academic dishonesty" as defined by the constituent institution.
+ N.C. Gen Stat § 116-40.11
(b) Any student organization officially recognized by a constituent institution that is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented, at the organization's expense, by a licensed attorney or non-attorney advocate
who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student organization shall not have the right to be represented by a licensed attorney or nonattorney advocate if the constituent institution has implemented a "Student Honor Court" which is fully staffed by students to address such violations.
(c) Nothing in this section shall be construed to create a right to be represented at a disciplinary proceeding at public expense. (2013-413, s. 6(c).)
+UNC Policy Manual 700.4.1.1 [R]
Regulation Applicable to Student Disciplinary or Conduct Procedures: Right to an Attorney or Non-Attorney Advocate for Students and Student Organizations
Definitions Role of Advocates Notification of representation Training of Hearing boards Monitoring conduct procedures (monthly)
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+The Student Conduct Process
+ What to Expect
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+ Conduct Process Incident Report Received Student notified of allegation Student Conduct Conference Notification of Charges (if applicable) Resolution of Charges
Hearing Plead Responsible
Student is notified of outcome
+ Incident Report
+ Student Notification
Campus Appearance Ticket Staff member referral Email or phone call from the conduct office
+ Student Conduct Conference
Intake Form Explanation of students rights Explanation of process Formal/Informal discussion
+ FERPAThe Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students.”
Generally without written consent a school cannot share a student’s record.
Exceptions
+ Notification of Charges
Formally charged with a violation of the Code Plead responsible or request a hearing Interim Sanction or Suspension
+ Interim Measures Cases of special or extenuating circumstances:
Pending Criminal Charges – typically felony charges Threatening or concerning behavior Sexual Misconduct
Interim Suspension Student is suspended pending the outcome of a conduct
hearing. Hearing is usually scheduled w/in 5-10 days of suspension Student is trespassed from University during suspension.
Interim Sanction Student is administratively withdrawn pending outcome of
criminal case, or resolution of issue Treated like a suspension
+Conduct Hearing Student Judicial Board or University Committee on
Student Conduct Order of the hearing Witnesses and Advocates Deliberations Notification Appeals
+ Appeals Non-suspension level – appeal to Director/Dean of
Students Suspension level – Vice Chancellor/President of Student
Affairs Expulsion level – Only Chancellor can implement
Appeal to Board of Trustees
+ Title IX Cases Sexual Misconduct Investigations conducted by Police, Title IX Coordinator,
and Conduct office Some are joint investigations depending on circumstances
Conduct Hearings are heard by Faculty and Staff Both parties have right to advocate during process. Victim/Complainant is notified of final outcome and has
appeal rights
+ Private Institutions
Handbook/Contract
State Action
+ Frequently Asked Questions I’ve been retained to represent a student in the conduct
process, how do I establish this with the University? My client has pending criminal charges, can we delay the
conduct process until they are resolved? The incident took place off campus, why is the school
concerned? When will I receive Discovery? Who determines the final outcome? Can I present evidence during the hearing? How does a matter involving sexual assault get resolved?
+ Things to Remember It is an Educational process It is NOT the courtroom Rules of Civil Procedure and Evidence Do Not Apply You are there as a advocate, but it is the student’s
process It’s not meant to be an adversarial process You are there to advise the student, and cannot
address others directly Every school is different
+ Contact Info
North Carolina Central University
(919) 530-5287 [email protected]
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Resolexions (919) 695-3998 [email protected] www.resolexions.com