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Are you a student or the parent of student at a New Jersey school, college, or university facing a school-related issue or concern?  Attorney Joseph D. Lento and the Lento Law Firm can help. The world of academia is unique, and the Lento Law Firm has unparalleled national experience bringing its problem-solving approach and fighting spirit to address school-related injustice.  Attorney Lento and his Firm have helped countless students and families in New Jersey and across the United States at the school level and in court.  Please click on the following links for more information.  Please also see our expanded list of school practice areas.

Joseph D. Lento has helped countless students and others in academia in New Jersey protect their academic and professional future, and he can do the same for you. Contact him today at 888-535-3686.

An Overview of New Jersey Student Discipline and Student Rights

New Jersey has 33 public universities and colleges, including one of the largest public colleges in the U.S. It's also home to many private institutions of higher education, including Princeton University, Monmouth University, and Rider University. If you are a New Jersey student and your college has accused you of misconduct, it can be overwhelming. Facing the full weight of an educational institution and navigating its pseudo-judicial system is a tall order. Fortunately, you do have rights, and your college must give you a fair hearing. Your best chances are with an experienced student misconduct attorney-advisor at your side who can make sure your school respects due process and you put forward your best possible defense.

Misconduct Allegations in New Jersey

There are 37 public colleges and universities in New Jersey and 132 private schools. Popular public state colleges in New Jersey include Rutgers University, The College of New Jersey, and Montclair State University, to name a few. Unfortunately, each of those schools will handle misconduct allegations differently, which can concern students. However, there are similarities in disciplinary processes and constants in students' rights. All of these schools, public and private, have to follow pertinent federal law and New Jersey's laws on due process and reporting.

Rutgers University

Rutgers, the State University of New Jersey, is among the largest colleges in the United States. New Jersey's land-grant university has a presence in all 21 of New Jersey's state counties. With campuses in New Brunswick, Newark, and Camden, Rutgers enrolls more than 31,000 undergraduate students annually. Rutgers Code of Student Conduct describes shared community values, grounds for discipline, procedure, and possible sanctions. This student code is specific to Rutgers students, on whichever campus they may be. However, it is also broadly illustrative of the kinds of grounds and sanctions for discipline you might expect in public and private New Jersey colleges.

Grounds for Discipline at Rutgers

Grounds for discipline at Rutgers include:

  • Acts of dishonesty, including academic dishonesty, forgery, unauthorized use of university documents or records, furnishing false information to a university employee, false emergency reports, forgery or alteration of a university document, possessing or selling false identification, unauthorized sale or re-sale of University event tickets and misrepresenting oneself as a university representative.
  • Safety violations, including misusing fire safety equipment or elevators and failing to comply with the reasonable and lawful directions of University officials and/or University police.
  • Physical misconduct, including inflicting bodily harm on or threatening to harm any person or animal.
  • Sexual misconduct outside the scope of the Title IX Policy and Grievance Procedures, including gender-based harassment, quid pro quo sexual harassment, sexual exploitation, sexual intimidation, and stalking
  • Bullying, intimidation, and harassment
  • Child abuse
  • Defamation
  • Hazing
  • Invasion of privacy
  • Theft or damage to property
  • Use or possession of alcohol, narcotics, or other drugs
  • Distribution of alcohol, narcotics, or other drugs
  • Disruption, including Disrupting or obstructing an academic class or lecture, university activity, administrative business.
  • Disorderly conduct: Engaging in behavior that is disruptive, lewd, or indecent.
  • Undisclosed recording, including any recording, live streaming, or transmitting images, audio, or video of private, non-public conversations and/or meetings on University premises without the knowledge and consent of all participants.
  • Violations of other published University regulations or policies
  • Abuse of the disciplinary system, including Knowingly providing false testimony or evidence at a disciplinary proceeding, disrupting or interfering with the conduct process, failing to complete imposed sanctions, refusing to provide information at a disciplinary proceeding, or harassing or intimidating any participant in the disciplinary process.

All Rutgers campuses use a formal hearing procedure for disciplinary actions, with a separate formal procedure for disciplinary matters that fall under federal Title IX laws and regulations, including sexual misconduct and harassment. The preponderance of Evidence” is the standard of proof required in adjudicating non-academic cases. This standard requires that it is more likely than not that the allegations brought against the accused student are true. This evidentiary basis is not as strict a standard as having “clear and convincing evidence” against the accused.

Possible Sanctions at Rutgers

Sanctions typically include two components: 1. An “inactive sanction” or official University sanction (Reprimand, Probation, Disciplinary Suspension, Expulsion, or loss of University housing) 2. An “active sanction” requiring the student to complete some form of service or assignment.

Inactive sanctions include:

  • Reprimand
  • Probation
  • Loss of university housing
  • Disciplinary suspension
  • Expulsion
  • Active sanctions include:
  • Restitution
  • Fines
  • University or community service
  • Educational programs, projects, or assignments

Disciplinary records at Rutgers and colleges throughout New Jersey

The State of New Jersey's Records Retention Policy requires that disciplinary records are kept for a specific length of time after the case's conclusion. Records may be kept for a minimum of one year up to an indefinite period, depending on the characteristics of the case. Disciplinary records may only be reported to third parties per college regulations and are subject to the Family Educational Rights and Privacy Act of 1974.

Oversight of Private Schools in New Jersey

While private schools may be able to operate with slightly more freedom than public or state schools, they're still subject to oversight from the state. New Jersey Revised Statutes Title 18A defines a private university as an independent institution of higher education that provides an equivalent level of education as a state school. Notably, Title 18A goes on to state that private schools are still eligible to receive state aid. This means that many private schools, in order to maintain that eligibility, may need to act in accordance with New Jersey regulations. Chapter 72A Educational Facilities Authority New Jersey Statutes Annotated Title 18A Education also gives the State of New Jersey some oversight over the “dormitory and educational facilities” at private institutions. Ultimately, if you attend a New Jersey private college or university and need legal recourse to resolve your case, your attorney-advisor will be able to help you determine the best course of action for you.

Title IX Misconduct Accusations in New Jersey and the Third Circuit

Colleges must follow a specific grievance procedure for handling allegations of misconduct that fall under Title IX. Serious allegations of sexual harassment or misconduct can fall under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq. Title IX allegations are usually subject to clearer and more stringent due process rules because the Department of Education issues federal guidance directing how schools should handle offenses falling under Title IX. These cases are often more severe, more heavily disputed, and prompt more litigation than other student misconduct cases.

What is Title IX?

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a federal civil rights law that prohibits discrimination based on sex. Title IX protocols and requirements apply in all federally funded schools in the United States—including any school that receives any federal funding, which can include private schools such as Princeton University, and Drew University. Title IX applies at all educational levels, including all major New Jersey colleges.

Title IX is a civil right that states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

This obligation to guard against sexual discrimination in education means that all schools in New Jersey that receive any kind of federal funding must protect against discrimination in college admissions, employment, and financial support.

Sexual harassment and assault count as forms of gender-based discrimination. This means campus sexual misconduct violates Title IX. Under the most recent guidance, colleges will be punished and fined if a college knows about an allegation and fails to investigate and remediate. Significantly this means colleges must investigate even if no student has made a complaint.

The requirement to investigate and adjudicate Title IX matters means schools have to hire and develop the capacity internally for an investigatory and judicial function. Unfortunately, how fairly and effectively they do this can varies from school to school. This makes it all the more vital that you are advised by an attorney who has successfully navigated school disciplinary proceedings many times before.

Sexual harassment not falling under Title IX

A student may allege a kind of sexual harassment that falls outside the jurisdiction of Title IX.

The offense may have taken place off-campus or overseas, or the specific offense could not come under the definition of sexual harassment given in the Title IX regulations.

Examples of excluded offenses include the following:

  • Gender-based harassment, including stereotyping or expressing hostility to someone's gender expression.
  • Quid pro quo sexual harassment meaning unwelcome sexual advances and requests for sexual favors in return for inclusion or progression in educational or campus life activities.
  • Sexual exploitation meaning non-consensual abuse or exploitation of another person's sexuality for sexual gratification, financial gain, or personal benefit. This includes spying on someone for sexual gratification or filming them without their knowledge.
  • Sexual intimidation that leads the target to fear for themselves or else to engage in sexual conduct for self-protection. Examples of this behavior include threatening to sexually assault another person or engaging in indecent exposure.
  • Stealthing, which refers to intentionally removing, damaging, or lying about the use of a prophylactic.

Federal guidelines make it clear that schools are free to handle sexual harassment allegations that fall outside the remit of Title IX however they choose. Changes to Title IX guidelines in May 2020 shrank the remit of Title IX offenses, and many colleges in New Jersey simply expanded their school behavioral codes to include these offenses no longer covered under Title IX. At Rutgers, for instance, though these offenses cannot be disciplined under Title IX, they can be penalized under the school's student conduct policy.

In practice, this means students at some New Jersey schools can face a two-tier adjudication system for sexual harassment allegations. This complexity makes it all the more important to seek expert legal advice.

Title IX Regulations

The Department of Education issues Title IX guidance instructing schools how to comply with the law. The regulations they give lay out the mandatory procedure that federally funded schools must implement to handle Title IX cases. Both parties and the school may consent in writing to pursue an informal resolution, but this option is not a requirement. There is a minimum due process that colleges owe their students who have been accused of misconduct. To begin with, the school cannot leave the accused student in the dark. The school should provide them with the names of the other parties, the date and time of the incident, details of the alleged conduct, and a notice of what policy is allegedly in violation. Schools must produce an unbiased and trained tribunal to adjudicate Title IX offenses in a hearing.

Due process for Title IX hearings include:

  • Allowing the accused student to consult an attorney or advisor.
  • Giving the accused student the opportunity to review all the evidence against them.
  • Giving the accused student the opportunity to produce evidence and witnesses of their own.
  • Allowing the cross-examination of both sides, including allowing the accused student to submit questions and to allow their attorney or advisor to cross-examine the witnesses.
  • Applying the correct and consistent standard of proof for all students and employees.
  • Providing both parties written findings of fact and conclusions of law and a rationale for the suggested sanctions or remedies.

Federal Courts of Appeals Differ in Interpreting Title IX

Federal law and regulations apply for Title IX disputes, and federal courts address conflicts that escalate to litigation. However, state courts and the eleven U.S. Circuit Courts of Appeals, which hear appeals from federal district courts, often differed in their interpretation of federal Title IX laws and regulations. For many issues arising under Title IX law, the various circuits across the U.S. hold schools within their areas to different standards.

1. Differing Due Process Standards

One example of differing standards involves the due process schools must give students during Title IX hearings.

On May 29, 2020, judges from the United States Court of Appeals for the Third Circuit made a key ruling on Title IX proceedings. They found that any college Title IX policy promising a “fair” process to its students must afford students a live hearing and cross-examination process. Significantly, this panel ruling applies even if the student attends a private college, where constitutional due process guarantees are not applicable. This effectively meant that colleges in New Jersey, Pennsylvania, Delaware, and the Virgin Islands all had to revisit their policies to ensure this.

The ruling regarding Title IX due process came out just as the U.S. Department of Education promulgated sweeping new rules governing college Title IX investigations. One of the most significant changes to federal Title IX guidance in May 2020 was the insistence on cross-examination and a live, adversarial hearing in which the accused can put forward a defense and challenge the evidence against them. As a result, all colleges nationwide must provide accused students with more due process.

2. Differing Standards of Institutional Liability

Differing interpretations of the school's liability is another area of ambiguity on which there is case law. Under federal Title IX guidance, If your school has ‘actual knowledge of an accusation, they must investigate it. In the past, under the guidance created by the Obama administration, the Department of Education could punish schools if they failed to investigate a Title IX offense of which they ‘reasonably should have known.

One example of case law on this from the 6th Circuit Court of Appeals lowered the bar for the school to be liable for the harassment that took place on its campus. In a private case against Michigan State University, a harassed student did not have to show any evidence of actual harm they had suffered as a result of the university's response. Instead, they just had to demonstrate that the school's failure to act made future harassment more likely.

While the Department of Education will continue to issue guidance on Title IX due process, there will still be gray areas that courts will have to interpret. Retaliatory lawsuits from students sanctioned for campus sexual harassment have sharply risen in recent years, as students challenge unfair expulsion and other severe sanctions, often from young men on the basis of gender discrimination. The Department of education's official guidance is set to change once again, opening up more room for doubt and varied legal interpretations.

How Do Due Process Rights Apply to New Jersey Schools?

Students have due process rights for all disciplinary matters, not just Title IX. Generally, due process should be proportional to the severity of the allegation and its resulting sanction. Title IX matters are extremely serious, so schools have to have their own quasi courts with a formal tribunal and hearing to handle them. Less egregious allegations of misconduct can have a more perfunctory investigation. The school may give the accused less due process and therefore less opportunity to defend themselves but accordingly give a smaller sanction. Schools across New Jersey will differ in what due process is given for different types of offenses.

1. Student's Procedural Due Process Rights

As a student, you have procedural due process rights. Your procedural due process rights mean that the school must take the proper procedural steps when they discipline you. Your substantive due process rights mean that there must be sufficient purpose for the school to deprive you of liberty or property.

The Government cannot take away property or liberty without due process. Public colleges are themselves government bodies and also must provide due process if their disciplinary procedures threaten to take away property or liberty interests.

The time and work that go towards your college education make school credits or your degree a heavy loss. If your education is taken away, this loss significantly impacts your long-term opportunities and earning potential. You are being deprived of a property interest, that property being your education. Similarly, if your reputation is being harmed because of your school disciplinary proceeding, then you are being deprived of your liberty. The U.S. Supreme Court confirmed in the case Wisconsin v Constantineau that a school disciplinary process that harms your good name amounts to a liberty interest.

If a school in New Jersey wants to sanction you by depriving you of your education, be it by suspending you, expelling you, or, as can be the case in academic misconduct cases, revoking your degree, they cannot do so arbitrarily.

If your school's disciplinary proceeding is harming your reputation and threatening your education, this is enough to involve a liberty and a property interest, requiring due process. If this is the case, a proper procedure must be in place to investigate and adjudicate with the level of due process matching the severity of the allegation and proposed sanction.

2. Student's Substantive Due Process Rights

Public and private colleges cannot interfere with your fundamental and constitutional rights. You have a right not to face discrimination on account of a protected characteristic. Protected characteristics include age disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Any discrimination against you or restrictions on your free speech on campus raises due process issues. Suppose you have suffered either discrimination or restrictions on free speech at the hands of your school in the course of the grievance procedure. In that case, that could form the basis of your defense, appeal, or retaliatory lawsuit. For instance, there have been many cases when male students suspended for alleged sexual assault have successfully sued their school for discrimination after proving they were treated differently for being men.

Free speech, like your reputation and good name, is a liberty interest. The New Jersey State Constitution gives its citizens an affirmative right to free speech. An executive order in 2019 ordered all educational institutions which receive federal funding to comply with federal free speech laws. Later that year, a bill in New Jersey statute required public colleges to adopt policies on freedom of expression, protecting free speech on state campuses.

Schools and colleges sometimes try to sidestep due process requirements by arguing their disciplinary proceedings amount to corrective rather than punitive action. However, the law is very clear that you have a right to due process in college disciplinary procedures if a property interest, liberty interest, or constitutional right is at stake.

Court Litigation Against New Jersey Colleges

If a college disciplinary proceeding has not gone your way, and your school has unfairly expelled you and harmed your reputation, you may have to take your school to court.

Steps to Take Prior to Pursuing Litigation Against Your NJ School

It's important to realize that suing your school is an irreversible action. It's also not one to take lightly—your relationship with your NJ public or private school will be terminated after the lawsuit, permanently. However, litigation against your school can be a good way to pursue a favorable outcome if you have exhausted all other options.

As such, you will want to ensure that you've already done everything you can. This will show an NJ court that you mean business, and that you've worked within the existing systems to resolve your issue as much as you are able.

The steps to take prior to suing include:

After you have completed these steps, it'll likely be time to consider litigation.

Legal grounds for taking your school to court include the following:

  • If you have evidence that your school demonstrated gender bias, you could make a complaint under Title IX, which protects against gender discrimination in schools. You could do this even if it was under Title IX that your school originally disciplined you.
  • You could sue your college for breach of contract if their disciplinary proceedings, process, and sanctions were not in line with school policy established by the student code of conduct and policy documents.
  • If your school fails to give you notice or let you defend yourself in front of a neutral judge or tribunal, you could take them to court for denying you due process. As discussed above, state colleges must give you due process if they take a property or liberty interest related to your education from you.
  • A New Jersey state school is a representative of the state, and so you may be able to challenge its decision with a writ of administrative mandamus. If the court acted outside its jurisdiction in disciplining you, failed to give you a fair trial, or if there was any prejudicial abuse of discretion, a superior court could overturn the decision.

Statute of Limitations

If you have been treated unfairly, it is very important that you do not lose the opportunity to bring a claim against your school. The statute of limitations for claims against your school varies according to the claim you want to make and also varies by state.

New Jersey's statute of limitations for the possible claims include:

  • For a written contract in New Jersey, the statute of limitations for breach of contract is six years from the breach.
  • The statute of limitations for due process violations can vary depending on your claim and whether you file a state or federal claim.
  • The statute of limitations for administrative mandamus can vary widely, from 15 days to four years, depending on the action challenged.

Given how much the statute of limitations can vary, you ought to consult an attorney experienced in college misconduct proceedings as soon as possible. It is best not to risk losing the opportunity to bring any claims.

Hire an Experienced Student Discipline Attorney-Advisor

Attorney Joseph D. Lento and the Lento Law Firm have unparalleled experience as attorney-advisors negotiating with, and when necessary, litigating against New Jersey schools and also countless colleges and universities nationwide. He has negotiated successful outcomes for students in a vast array of student misconduct matters and those involving other school-related issues and concerns, and no matter your individual circumstances, he will be able to guide you to your most favorable outcome. To book a consultation, call us today at 888.535.3686

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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