If you or your student attends a private school rather than a public school, the private school has far greater flexibility in adopting and applying its misconduct policies. The private school's flexibility generally works against the private school student, not in the student's favor. After all, if a private school can do pretty much as it wants, then it is more likely to take its own interest over student interests. If you or your student faces private school misconduct charges, then defending and defeating those charges may be more of an uphill battle. You may have avenues for relief, especially if you retain an expert academic administrative attorney who knows those avenues. But your challenge is different than it would be if you or your student attended a public school. If you or your student faces unfair, unsupported, or unjust private school misconduct charges or seeks to impose an arbitrary and capricious misconduct sanction, retain national academic administrative defense attorney Joseph Lento and the expert team at the Lento Law Firm. Attorney Lento knows how to communicate, negotiate, and if necessary, litigate with private schools for the best student outcomes.
The Source of Public Versus Private School Obligations
Public schools owe their students constitutional rights and protections. The Fifth and Fourteenth Amendments to the U.S. Constitution guarantee public school students' so-called due process rights. Government cannot deprive citizens of property or liberty interests, including the right to attend public school, without treating those citizens fairly. Due process in the context of public school misconduct charges means several things. The public school must generally:
- notify the student of the specifics of the misconduct charges
- disclose to the student the evidence against the student
- offer the student a hearing at which the student may present a defense
- provide a reasonably neutral decision-maker for the hearing
- avoid treating the student in an unlawfully discriminatory manner
Due process rights, though, only protect citizens against government, not private, action. These public school misconduct protections do not apply in the private school setting. The private school student who objects to the school's arbitrary and capricious mistreatment in a misconduct proceeding must rely on other rights. That limitation is what makes fighting private school misconduct charges more of an uphill battle.
The Contract Obligations of a Private School
Yet as much as fighting a private school over false, unfair, unsupported, or exaggerated misconduct charges can be an uphill battle, you and your student may still have appropriate recourse. Your remedy won't be federal constitutional law. But market forces also play a role in holding private schools accountable. Private schools may generally do as they please in adopting policies. But bad policies lead to unhappy students and unhappy parents choosing other private schools. Private schools understand these market pressures and respond by promising students and parents fair policies, including fair procedures for deciding misconduct charges. Those policies and procedures, if clear and firm enough in their communication of rights and privileges to students and parents, can form part of the tuition contract. In short, you can't rely on constitutional due process to hold your private school accountable. But you are often able to hold your private school accountable using contract rights. Indeed, those contract rights can, in some cases, be more generous, offering greater protection than constitutional rights.
Locating Contract Rights
You and your retained academic administrative defense attorney have clear places to look to discover the contract rights on which you and your student may need to rely. Private schools may offer some form of tuition contract. But if so, those contracts do not typically detail substantive or procedural rights relating to misconduct charges. Private schools, though, typically publish student policies, codes, or handbooks. A private school that publishes a policy, code, or handbook to the student and parents generally does so with the intent that the student and parents rely on it. Private schools also publish marketing materials to students and their parents, promising fair treatment and respect of rights, again intending that students and parents read and rely on those materials. If the student and parents have the reasonable expectation that the private school will follow the policy, code, or handbook promise and procedure, then that provision ordinarily becomes an implied contract right. In short, you and your retained academic administrative attorney may look through the private school's marketing materials, student handbook, codes, and policies for promises on which to rely for fair treatment in misconduct proceedings.
Examples Arbitrary and Capricious Action
Just what constitutes a breach of a private school's policy can be hard to discern and prove. Contract law is state law, varying from state to state. But state courts tend to apply an arbitrary and capricious standard to disputes of this sort between a private school and its student. A private school's promise of fair procedures could mean almost anything. But according to many courts, it must not include arbitrary and capricious actions that shock the judicial conscience. The Louisiana case of Ahlum v Tulane Educ. Fundprovides an example in which the lower court enjoined the private university from expelling a male student accused of sexually assaulting a female student who had initially admitted the actions to be consensual. The court based its injunction on the defendant university having included prejudicial materials in the hearing record without first sharing them with the accused student. Although the appellate court reversed, the opinion confirmed the obligation of private schools not to treat students arbitrarily and capriciously in misconduct proceedings.
Another privately reported case held a private school responsible for arbitrary and capricious action when it summarily dismissed a student sexual assault victim whom other students had embarrassed and bullied over the assault. The private school ended up facing a $12.5 million jury award for its breach of contract and plainly capricious action. Most private school administrators are reasonably responsible and respectful, even cautious. But private school administrators can make gross mistakes, especially when faced with misconduct allegations that threaten the school's reputation. Private schools do sometimes commit arbitrary and capricious actions in breach of their contractual obligations and their students' rights in these and other ways:
- barring the accused student from obtaining exonerating or mitigating evidence
- concealing exonerating or mitigating evidence from the accused student until after hearing
- failing or refusing to identify material witnesses whose testimony would have favored the accused student
- falsifying or destroying documentary, electronic, or physical evidence favoring the accused student
- prohibiting the accused student from questioning witnesses whose accounts lack reliable corroboration
- failing to notify the accused student of the time, place, and location of the hearing and the student's hearing rights
- permitting biased decision-makers and decision-makers with conflicts of interest to decide the accused student's case
- refusing to permit the accused student to challenge decision-makers for bias and conflict of interest
- reaching decisions that are unsupported by substantial evidence in one or more of their required elements
- considering evidence that is irrelevant, inflammatory, and unduly prejudicial
The Limits of the Arbitrary and Capricious Standard
The reach of the arbitrary and capricious standard, though, is limited. It's still more of an uphill battle than a public school case. The Massachusetts case Driscoll v Milton Academyprovides a good example. In that case, the parents of teenage male students claimed that the private school defendant had pressured the students into hasty and uninformed admissions of sexual misconduct with a female student, while the male students were unrepresented. Applying the arbitrary and capricious standard, the court rejected those claims. The private school had used available lawful means to investigate and determine the facts of a case involving serious misconduct. That the male students whom the school promptly expelled for that misconduct were not informed and represented when they admitted to the misconduct did not make the school's conduct coercive, arbitrary, or capricious. In reaching that conclusion, the court added that private schools generally have wide discretion in adopting, interpreting, and applying their policies, including misconduct policies, contract assurances notwithstanding.
If you need to challenge a private school's false, unfair, and abusive misconduct charges or exaggerated sanctions, you need a skilled and experienced academic administrative defense attorney. You can hold a private school accountable to its own promises and its own reasonable standards. But doing so requires an expert academic administrative attorney who knows the right legal theories. Your retained academic administrative attorney also needs to know how to use those theories in firm but fair negotiations to obtain early favorable resolution. Your goal when facing abusive misconduct charges is not to escalate the conflict or to aim for private civil litigation. Your goal is to preserve and promote the private school education. The right approach in academic administrative matters is for your expert attorney representative to speak softly while carrying a big stick. Retain national academic administrative defense attorney Joseph Lento for the most-effective defense of your private school misconduct matter.
What's At Stake in Private School Misconduct Proceedings
Don't underestimate what's at stake in your private school misconduct proceeding. Misconduct findings, especially those involving threatening or dangerous behavioral and sexual misconduct but even those involving cheating or other academic misconduct, can have long-term impacts. Misconduct findings and reprimands, suspensions, or expulsions can prevent a student from completing a diploma, certificate, or degree. Misconduct findings and sanctions can also prevent the student from gaining transfer or admission to another school. Misconduct findings and sanctions can also keep a student from honors, awards, scholarships, references, and recommendations, on which jobs and careers can depend. Misconduct findings and sanctions can also affect reputation and relationships. Facing misconduct charges is not the time to walk away, give up, or give in. Facing misconduct charges responsibly and effectively involves concerted and committed action.
What to Do About Arbitrary and Capricious Actions
If, as a result of the private school's refusal to follow its own policies, or its arbitrary and capricious actions, you or your student suffered false, unfair, or unsupported misconduct findings, or exaggerated and unduly punitive misconduct sanctions, then your best action is to immediately retain an expert academic administrative defense attorney to demand that the school take prompt corrective action. Don't retain a local criminal attorney who is unfamiliar with private school administrative law and procedure. You need a skilled and experienced academic administrative defense attorney who knows who to contact at your school, what presentation to make to compel corrective action, and what further to do if the school refuses. Much of the time, the right communication in the right tone from the right academic administrative attorney of the highest skill and reputation will lead to a favorable negotiated resolution. And if a favorable compromise resolution does not work, then your retained academic administrative defense attorney may have the private right of action on which to sue.
Premier Academic Administrative Defense Attorney Available
National academic administrative defense attorney Joseph Lento and the expert team at the Lento Law Firm are available nationwide to assist you or your student over private school misconduct charges. The time to retain attorney Lento and his expert team is not after your case is over and you've lost. Attorney Lento has successfully negotiated relief for many students even after the case is over, by reaching out to Offices of General Counsel or similar oversight bodies. If you think you've done everything you can but have still lost, don't give up hope without consulting with Attorney Lento's office. But the better time to retain your expert academic administrative defense attorney is when you first learn of the misconduct charges. Attorney Lento is often able to negotiate an early informal favorable resolution when the client retains him and his expert team early in the case. Call 888.535.3686 / 888.J.D.Lento or go online to share the nature of your case. Don't delay. Act now for vigorous and effective defense of arbitrary and capricious private school actions.
