Higher education is a costly and timely investment. For this reason, there is so much at stake for students facing serious accusations for violating their college or university policy. A determination that could lead to sanctions that dictate the withdrawal from a program, suspension, and expulsion put a student's academic and professional goals in jeopardy. As a parent of a college student, you, more than anybody, want to see your child succeed. And In the midst of such serious allegations, you're probably wondering what will happen next and what you can do to improve your child's current circumstances.
Don't fret. Here's a list of common questions that parents in your shoes have asked before, along with in-depth answers that will help you understand how to make strides towards putting this unpleasant experience behind you.
What rights does my child/student have in the disciplinary process?
During a school's disciplinary process, there are a number of rights afforded to both complainants (the accuser) and respondents (the accused). For the sake of this article, we'll focus on the most important rights that are entitled to the accused in school processes.
The right to be treated with respect by college officials
A mere accusation, particularly one involving an immensely stigmatized charge like sexual misconduct, is oftentimes preconceived as an affirmation of guilt. Students who haven't even been given a fair shot to defend themselves in a school proceeding are hastily branded as harassers and assaulters in the wake of allegations by peers and society. But this premature assignment of condemnation onto a respondent by college officials and authorities in particular has damaging effects.
In cases involving sexual misconduct, the origins of this instantaneous and unfounded presumption of guilt are justified in the minds of spectators as a means of respect for the alleged survivor. For those informed in their approach interaction with parties in sexual misconduct cases, the act of victim blaming, or casting guilt onto a survivor for what perceivably occurred, is outright reprehensible. However, in most people's efforts to refrain from blaming a victim, the pendulum swings the other way, causing them to cast the blame completely onto the respondent. The reality is that the line between refusing to victim blame and unjustifiably crucifying an accused student has remained murky for some time.
As a result of this way of thinking, lawmakers have made efforts to ensure that your child is afforded the right to be treated with respect by school officials. Although college authorities may make premature assumptions about a student based on their allegations, they are not permitted to act on this bias. Any disrespectful or unfair actions committed or expressed towards a student by school officials is a direct violation of his or her's rights under federal law and will be met with corrective actions.
The right to be fully informed of potential violations and sanctions
A consequence of the assumption of guilt and unfair treatment by a school is that your child may not be provided with all the information they need to properly defend themselves. Although education institutions always preach about equality and fair treatment, sometimes their actions in this context are contrary. However, for an accused student, an infringement of this right by a school has serious consequences.
For an accused student, the ultimate goal in a hearing is to provide evidence that supports their claim of innocence. In academic misconduct cases, one could provide evidence that could back that they weren't the one who plagiarized, it was another student who their your authentic essay topic, phraseology, ideas etc. and used it in their work. In cases involving sexual misconduct, evidence indicating that a respondent was given affirmative consent during a sexual encounter would be essential in their case. However, one can't go about collecting proof if they aren't provided with the details.
Respondents who are completely taken aback by their allegations, may not even remember what happened at all. If a school does not provide them with all of the charges against them, details of the alleged violation, and the possible sanctions they're up against, they won't be able to adequately defend themselves. Once information is deprived, school processes automatically become unfair and partial.
The right to have access to campus resources
The harsh reality for respondents is that not many people are concerned about their well-being. Accused students in adversarial relationships with the school or with another student or individual in the midst of violations will oftentimes have their feelings overlooked and undervalued. This notion reigns especially true in sexual misconduct cases. The offering of school services and resources to an accuser is prioritized, while there is little to no concern for the mental or physical health of a respondent. This one-sided response is valid, particularly in circumstances when harassment or assault claims are true. However, good intentions should not override the expectation to protect the rights of both an accuser and the accused.
Being branded as a rapist, harasser, cheater etc., being shunned by virtually everyone around you, and grappling with the possibility of the discontinuation of your college career is stressful - even more so for students who maintain the genuine belief that they are innocent. In order to healthily cope, respondents are encouraged to utilize counseling/psychological services, medical services, and other on-campus resources.
Although there are obvious reasons why one might refrain from getting help from a school, like confidentiality, and the stigma placed on mental health issues, seeing somebody may help your child effectively deal with the emotional and psychological trauma they've experienced. A healthy state of mind can decrease the likelihood of a student making decisions that they might regret while under stress. All too often, respondents sabotage their own case by threatening a victim, refusing to cooperate with a school, or by performing incriminating actions. Receiving the emotional support you need in these immense times of scrutiny will help a respondent think clearly, and they'll be more inclined to make rational decisions that won't foil their chances of prevailing in a disciplinary hearing.
The right to legal counsel
The vast majority of higher education institutions allow the accused the right to retain a student defense attorney or an “advisor” to help them navigate through school disciplinary processes. This is a right that students who are facing dire ramifications should seriously consider taking advantage of. Chances are, you and your child have never been through this process and need the help of someone who understands your respective school's policy, and the state and federal laws that govern this institution.
The right to appeal the finding and/or sanction determined by a school
After enduring their school's disciplinary procedures, students who receive findings of a guilty determination usually accept their fate. They feel as if they did all they could do, and defeatedly make preparations to face the harsh repercussions they fought hard to evade. This is an understandable reaction to an unfavorable determination, as all the stress, anxiety and nerves that one has experienced during these processes has exhausted them to a point where they just want to the put experience behind them.
It's important for you to remember that a guilty determination does not have to be a final determination. As tempting as it may seem to face the music, there is still one last effort your child can make to salvage their reputation, and preserve their educational and professional future. For students and their families who may speculate that a determination and/or sanction is unfair or unjustified, they can submit a request for an appeal.
An appeal is a procedure that urges a college or university to reconsider a decision it previously made. In order for an appeal request to be granted, it must be based on good reason, officially referred to as reasonable grounds. Mere dissatisfaction with a determination or sanction is not enough. Students have the option of appealing on the following grounds:
- A procedural error was made that impacted the outcome of a determination/and or sanction: A student may indicate through an appeal request that a procedural error was committed at some point in the process. Perhaps a school official did not hold a preliminary hearing upon receiving notification of the allegations, and a respondent was not given the opportunity to explain their version of events. This is a valid ground for the school to ultimately appeal a determination.
- There was new evidence that wasn't made available at the time of the original hearing: A respondent was not made aware of new and relevant evidence that could have been useful in their case. For example, let's say you were falsely accused of sexual harassment by an ex-lover. You are blocked from them on all social media, so you missed the Facebook update revealing their intentions to falsely accuse you. A mutual friend of yours screenshots the message and sends it to you a day after your guilty determination. You could appeal this decision since this new information was missed and it was vital to your case.
- The sanction was disproportionate to the severity of the violation: In some situations, schools have been reported to go overboard when it comes to the imposition of sanctions. For academic misconduct involving plagiarism, for example, a sanction that requires the expulsion of a student for a first offense would be objectively too harsh.
It's important to note that the rights afforded to your child during an institution's disciplinary process hardly resemble the quantity of rights of an individual entangled in the criminal justice system. In fact, your child is offered fewer rights as a student then they would in any other circumstances.
For example, students have no guaranteed right against self-incrimination. Criminal defendants are afforded the well-known right to remain silent in their cases. This silence will likely not affect their case, as they can refuse to talk to authorities but tell all of the details to their attorney. Students, especially ones with potential impending criminal charges, on the other hand, must fend for themselves. Although they can be active in the process, attorneys aren't allowed to interject in hearings. So, if you remain silent, the school will only hear the complainant's version of events. However, if you tell your side of the story, these words can be used against you in court.
Also, in court, criminal defendants are afforded the right to confront and cross-examine their accusers, and the witnesses who have testified against you. In the world of educational institutions, this is an aspect of a disciplinary hearing that rarely occurs. The cross-examination of an accuser is strongly discouraged in school settings. In some circumstances, a respondent and complainant may not even be allowed to be in the same room. The Department of Education, however, has dictated that respondents are allowed to submit questions for an adversarial party to answer, only under the condition that the questions posed are deemed “appropriate and relevant” by a hearing panel.
Despite the limited rights that students are afforded, it is still possible for respondents to prevail in a hearing and get a favorable resolution. Realistically, some cases will feel like an uphill battle, but there is no such thing as an unconquerable case. Parents should also keep in mind that success is relative. A success may consist of landing a “not responsible” determination or reducing a potential sanction of an expulsion to a suspension. Whatever the best option is for you depends on the nature of the violation, and your individualized circumstances.
Does my child/student have due process rights?
The answer to this question is situational. Students who attend public colleges and universities are automatically afforded standard due process rights in the midst of disciplinary procedures. What becomes of students attending private institutions depends on the policies enforced by their respective school.
Due process is a constitutional law that ensures students in school settings are treated fairly by federally funded institutions. Due process includes many of the fundamental rights mentioned above, including the right to notice of allegations and a right to a fair and impartial hearing. Under federal law, the more severe the allegations a student is facing at a public institution, the greater the protections afforded to them.
Private schools, contrastingly, are governed by a distinguished monster, known as contract law. This sector of the law allows the authorities running these institutions to create and enforce their own rules and regulations. If you dig deep into your memories, you might remember you and your child signing a legal document signifying that you carefully read your school's student handbook, and agree to adhere to these regulations. The only way to become informed of your rights at a private school is to locate your student handbook, study the code of conduct, and apply these rules to your case. Students attending these institutions are afforded these rights alone in accordance with your school's state contract law. This handbook, along with the code of conduct, and potential ramifications are accessible online.
Can I sue the school?
In the event that your child's rights are violated, suing the school is an option. However, determining whether or not this is an effective and practical option for you is the tricky part. The ultimate goal for most parents is for their child to put this unpleasant experience behind them, and can do so unscathed by their school's disciplinary actions. If you are a parent who wants to get this process over with, suing isn't your preferred route. Legal actions can take months and even years to resolve in court, and you'll be dragging your child through a whole new complex and intricate process.
However, for students who have experienced a severe deprivation of rights by their school, suing could be an option to consider. The only way to determine the most suitable course of action for your case would be to consult with a knowledgeable student defense attorney.
What should we do?
This answer is dependent on what is at stake for you. For parents who value their child's academic and professional future, involving a student defense attorney or legal advisor is a must. Potential ramifications like a withdrawal from a degree program, suspension, and expulsion can throw a massive wrench in a student's academic journey. These repercussions could cause major setbacks pertaining to the goal of a student to graduate on time with their class, or graduate altogether. In order to maximize your student's chances of prevailing in court, here are a few things you should consider:
Ensuring the protection of your child's rights and interests
In school proceedings, the preservation of a student's rights is necessary for a positive outcome. Although schools are expected to abide by their own mantra of fairness and equality, sometimes their actions reflect the contrary. This is why it's crucial for students in compromising situations to receive the guidance of an attorney. Most students won't be able to recognize the various ways institution officials may be slighting or disadvantaging them in the midst of processes. Attorneys who are well-versed in your school's policies and the state and federal laws that govern them will notice unfair treatment. With a legal professional on your child's side, you can level the playing field in a system that isn't designed for accused students to prevail.
Building up your child's reputation
Apart from seeking legal counsel, parents can work towards building up their child's reputation. Once allegations are brought to the light, many people will begin to question the character of student respondents. In these moments, it's important to highlight that he or she is a good person. Providing evidence of your child's contributions to the school, their society, and counterparts, as well as the leadership positions they've taken outside of school (youth leader in a church, a rally organizer, etc.), will exponentially help their case.
Get active in the process
Once you've made the decision to retain an attorney, it's time to let the school know that you take the academic and professional future of your child seriously. Have your attorney contact the school's attorney to sort out arrangements, initiate negotiations, and more.
What is the role of the school's attorney?
School lawyers are employed by institutions to represent their concerns and interests as they pertain to legal matters. These attorneys perform a variety of actions for the school, like lending them advice, thoroughly researching relevant issues, and making preparations to pursue litigation. Your child's educational institution surely understands the importance of the preservation of their rights. All the more reason for you to retain an attorney to ensure your child's interests and rights are protected in the midst of school disciplinary actions.
What are the school's interests?
One of the main culprits for a respondent's failure in disciplinary hearings is their unwavering and precarious dependence on a school. Accused students and their families buy into the narrative perpetuated by institutions that schools are nurturing spaces that always prioritize the needs and feelings of students. Thus, respondents feel comfortable relying on their institution to mitigate allegations of violations with their interests and “the truth” in mind. This way of thinking is naive and will expose your child to serious ramifications if you aren't careful. This sentiment is especially true in cases involving sexual misconduct.
In compliance with Title IX, federally funded schools are required to handle cases consisting of gender-based discrimination. Sexual misconduct in all of its varieties - sexual harassment, sexual assault, rape etc. - is considered a form of gender-based discrimination under this law. In prior years, schools were notorious for perpetually sweeping allegations involving sexual misconduct under the rug for various reasons. The supposedly noble justification for disregarding this behavior was the belief that staff members weren't well equipped to deal with the emotional and psychological trauma that inherently accompanies these allegations. Schools were accustomed to resolving academia related issues, like academic misconduct - charges officials felt they were adequately trained to tackle.
Critics of public institutions and their repugnant disregard for the safety of students suspected that schools were also disregarding these allegations for selfish reasons. They argued that schools had a fear of tainting the crime-free facade that they worked hard to maintain. The people governing these institutions understand that a school with a crime will be considered unsafe, and a reason for students and their parents to consider other options.
As disappointing as the reasons behind these actions may be, it's a sentiment that is constantly reinforced by institutions in a variety of ways. Parents and students must understand that a school's concerns are compelled by what's in their best interest, the interests of the people who can hold them accountable (a complainant), and lastly, if at all, a respondent's. Need more proof? Here are some examples:
1. A school's interests
As indicated above, schools did not change their attitude out of mere concern for the safety of their students. They did so for self-serving reasons, but not without a nudge from the federal government. In 2011, the Department of Education issued a letter to public education institutions urging them to change their approach. The statement warned that if nothing changes, they risk losing federal funding.
2. A complainant's interests
This letter significantly empowered victims. Rather than helplessly watching the school ignore their claims of sexual misconduct, they could now hold institutions accountable for the neglect. They were given the option of imposing consequences of their own for being ignored by suing schools for large sums of money and winning. In an extreme response to the looming threats of a lawsuit and the loss of federal funding, schools conveniently began approaching sexual misconduct cases promptly and aggressively. All in efforts of appeasing accusers, and preventing them from filing viable lawsuits.
3. A respondent's interests
In the course of this new approach, the accused is disadvantaged and ignored. For most schools, catering to an accuser means mistreating the accused. Unfortunately, schools aren't oftentimes faced with severe consequences for slighting respondents.
When should I involve an attorney?
Time is of the essence when it comes to student cases handled by institution officials. Some families make the common mistake of waiting until they've gone through the entire process and received an unfavorable determination and sanction to contact an attorney. This is a risky move. In order to maximize your chances of success, it's best to consult with a legal professional as soon as you receive notification of allegations. In cases involving serious violations, the earlier an attorney is involved, the better.
Why? As a respondent in a case, especially one involving sexual misconduct, there is an abundance of forces that are pitted against you from the start. In order to make proper preparations to defend yourself in a way that is effective, you need an attorney to help you devise a strategy, and give you advice as to what pitfalls to avoid during the process. The steps you take immediately after receiving notification of allegations are what will influence your outcome. A skilled and experienced attorney will ensure that you take the appropriate steps towards a favorable resolution.
Will an attorney help or hurt?
You've probably heard of the horror stories people share of their lousy experiences with attorneys. Because of incompetent and inexperienced representation, families sometimes feel as if they wasted valuable time and money to remedy an issue that was inevitable. However, you can avoid this issue if you choose the right attorney for your child. In your pursuit of a suitable legal professional in a student defense, you should search for the exhibition of specific traits: experience, assertiveness, and empathy.
Experience is a quality that is valued for all types of cases. However, it becomes especially useful in cases involving school processes. The processes conducted by institutions to mitigate issues are unique in their own right from the processes regulated in the criminal justice system. In order for an attorney to lend effective advice to student clients, he or she must be familiar with this school's processes, its code of conduct, and its culture. Your case requires the help of a legal professional who has handled similar cases before and who has helped respondents come out on top.
It is also necessary for a legal professional who handles your child's case to be assertive. Schools officials, staff, and an institution's attorney will be pushy to get this case squared away. In the absence of the element of assertiveness, you'll lose the stern footing you need to prevail in a hearing.
There's a large distinction between attorneys who enter this line of work because they have a genuine concern for their student clientele and attorneys who are in it for self-serving reasons. As you interact with potential attorneys, this distinction should be clear if you ask the right questions. An attorney who has many clients to attest to their good services would be one to consider.
What kind of evidence can help the accused?
Going about the investigation process alone is risky. Chances are you've haven't been taught how to thoroughly investigate a case or how to collect useful and relevant evidence. The most important thing to remember is that the collection of evidence is pivotal. Throughout a student's school disciplinary processes, respondents should be collecting evidence to help support their version of events. Here are several types of evidence that can help you in a school proceeding:
- Electronic communication: It's safe to assume that most college students utilize some form of technology to communicate with their peers. Whether these interactions are occurring through text messages, email, or online social media sites like Facebook, Twitter, or Instagram, records of these communications can prove to be critical in your case. Once a respondent has received notification of their allegations, they should save any messages, pictures, or any other types of evidence on these platforms that may be relevant to his or her case. Electronic communication evidence does not have to be limited to a student's interactions with an accuser. It can be centered around conversations with people who were at the scene of the alleged incident and other relevant witnesses.
- Polygraph test: Students who are serious about proving that they aren't lying may voluntary take a polygraph test. For students who make this effort, it's important you keep the questions asked and the original findings to serve as proof in your case.
- Witness statements: Recording the statements of people who were at the scene of the alleged occurrence may also prove to be useful.
Student Defense Attorney - Pennsylvania, New Jersey, and Nationwide
Receiving notification of your child's alleged violation of their school's policy is a nerve-wracking experience. It's understandable that you would have some questions as to what steps you should take next, and how to ensure your child's educational and professional future is protected. In this circumstance, there is an abundance of measures you should consider as a parent, but none of these actions is more important than retaining an attorney. Receiving help from a legal professional is a surefire way to maximize the likelihood of a favorable outcome in a school hearing.
Joseph D. Lento has extensive experience helping students prevail in disciplinary proceedings with violations consisting of academic misconduct, sexual misconduct and more, and he can do the same for you. If your child has been accused of violating their institution's code of conduct, contact him today.