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Campus Disciplinary Records and How They Can Affect College and University Students

Posted by Joseph D. Lento | Dec 27, 2016 | 0 Comments

When a student receives notice that they are being investigated by their college or university regarding an alleged disciplinary violation, the immediate question that often comes to mind is, "What am I supposed to do?"  Every student disciplinary case is unique, whether a student is facing a potential code of conduct disciplinary charge, an academic misconduct charge, or a sexual misconduct allegation or Title IX charge.  One constant is that accused students and their parents must make sure they properly respond to the allegations, but only after doing their due diligence as to understanding how the allegations can affect the student, and only after they take the proper precautions in not making an unfortunate situation worse.

Once involved with their college of university's disciplinary process, students and parents will often be concerned with the "here and now" of the matter, and rightfully so.  Doing everything necessary to get the best possible result at that given time is of course absolutely necessary, but it will be mistake if attention is not given to how a student disciplinary case can affect a student in the future; both the short and long-term.

Future Goals Can Be Seriously Jeopardized Due to a Student Disciplinary Case

Students attend college for various reasons, including to grow academically and intellectually.  Students' goals of course also vary, but within the realm of possibilities are getting a good professional job, attending graduate school either immediately after college or sometime shortly thereafter, serving in the military as a commissioned officer, attending a charitable program such as the Peace Corps, and so forth.  It is not just students who have graduate school in mind as a prospective option, but any future goal can be greatly affected by an adverse "finding" of responsibility in a student disciplinary case.  Consequent sanctions after a finding can be severe, but a "finding" alone can create major complications in a student's life and can jeopardize the path ahead.

Medical schools, law school, graduate business schools, and so forth, will almost always ask an applicant if they had ever been found responsible or sanctioned for a student disciplinary issue.  In addition, it is not uncommon for an applicant to also be asked if he or she had ever been charged with any disciplinary matters while in school.  Professional employers have become more comprehensive in what kind of background information they require of applicants before making a hiring decision.  Criminal background checks are of course standard, but students and their parents may not realize that employers will often make the same inquiries.

Understanding how a student disciplinary case can affect a student's short-term and long-term goals, students and parents should consider how student misconduct can be noted on transcripts and disciplinary records.

A Student Must Consent to the Release of a College or University Disciplinary Record, However...

The Family Educational Rights and Privacy Act, also known as "FERPA," mandates that colleges and universities (among other academic institutions) treat disciplinary records as part of the student's education record.  Federal litigation confirmed this requirement per FERPA; specifically, the decision was confirmed in 2002 by the U.S Court of Appeals for the Sixth Circuit in which the federal government, Miami University, Ohio State University, and the the Chronicle of Higher Education were parties to the action.  The result of the decision was that student disciplinary records, if created by the college or university, are required by FERPA to be recorded and maintained by the school just like any other academic document.

Additionally, the student's disciplinary record cannot be disclosed without signed consent from the student unless certain conditions are met, as outlined in FERPA.  For example, Section 99.31(a)(14) of FERPA allows disclosure of a student disciplinary record to appropriate parties, such as law enforcement, if the student is determined in violation of the student code with a crime of violence or non-forcible sex offense. Also, the “Health and Safety Emergency Exception” exception detailed in Section 99.36 of FERPA states that information within the record can be disclosed if the college or university official determines that specific information can be linked to the resolution or prevention of a current or impending health and safety emergency. If no final determination of guilt or violation is made, or it is pending, no disclosure can take place unless there is an emergency as outlined above.

Students who are found responsible for a school disciplinary violation may mistakenly take solace in the fact that, in most instances, the student has to given written consent for their disciplinary record to be released.  A student may mistakenly believe that their disciplinary record may not have to come up as they pursue future options; for example, if the student intends to apply to another undergraduate school for transfer purposes, or a graduate school, or an employer.  The reason that this is a flawed perspective is that the other school, employer, or the like, will generally require that the student provide consent that their disciplinary records be made available, and if the student declines, the student will not be considered further for admission or employment.

Considerations Regarding How Colleges and Universities Handle Student Misconduct

Students who find themselves charged by their college or university are often upset with their school, and understandably so.  Students will often ask, "Can my school do this to me?"  Parents often will ask, "I am paying good money to this school - How can the school take disciplinary action against my son or daughter?"  The short answer is that every college and university across the nation can do so based upon their has own policies and procedures regarding how student misconduct is addressed and adjudicated on campus; as long as the polices and procedures are "appropriate" to the circumstances at hand.  The Code of Conduct disciplinary process can vary greatly among schools; the same is also true of how academic misconduct allegations are addressed and resolved.  Because almost colleges and universities across the nation receive federal educational funding, and therefore must comply with federal Title IX mandates to remain eligible, there are similarities to how Title IX charges are handled at schools, although there are also significant differences.  The question of what is and what is not "appropriate" in a campus disciplinary setting may never be settled depending on the perspective of the person considering the matter.

Is your college or university a public or private school?

The matter is complicated further by whether the college or university in question is a public or private institution.  Public colleges and universities must afford due process to the student not only per their own stated policies, but also per the Constitution of the state where the school is located, and also the Constitution of the United States.  Private colleges and universities, in contrast, do not have to afford due process in the traditional sense, but must nonetheless comply with their own polices and procedures.  If a private school does not do so, the school can be potentially liable for breach of contract or other causes of action.  The potential claims that can be made against a public college or university are generally more expansive.  Ultimately, schools have an obligation to both the the campus community and the student body at large, the complainant when the matter involves allegations between students, and the accused student themselves.  A student's and parents' goal should be to try to get the best possible result at the school level; litigation, although sometimes necessary depending on the circumstances of the case, should generally be considered as a last resort.

How can a student disciplinary record affect transferring to another college or university?

Understanding that a college or university can adjudicate allegations of student misconduct per the school's stated policies and procedures (and also per Title IX mandates in cases involving sexual misconduct), students and parents may look for any possible way out of what must be described as a bad situation.  Sometimes the prospect of transferring to another school is brought up by students and parents having the misfortune of being involved in the campus disciplinary process.

Even if a prospective transfer to another school is in a student's best interests in light of academic and professional goals, avoiding the issue by transferring to another school is generally not a viable solution, nor a recommended solution.  The reason being in part that disclosing information about a transfer student's disciplinary record to an college or university where the accused student seeks or intends to enroll is governed by federal law; specifically, per Section 99.31(a)(2) of FERPA.

FERPA allows a student's education record, including campus discipline records, to be distributed by the transfer student's school and reviewed by appropriate school officials; in the case of a prospective transfer student, "appropriate school officials" would be school officials at the college or university where the student is applying to transfer.  Pending school disciplinary investigations and also finalized investigations can be forwarded by the school where the student was or is the subject of a disciplinary investigation.  Even if the school where the student under investigation intends to transfer is not proactive in forwarding disciplinary records, the following concern arises.

FERPA also allows the college or university where the student is applying for transfer to request an applicant's disciplinary record during the application process.  This is standard practice and students and parents must understand this reality.  Although colleges and universities are required to inform students of their FERPA "rights" on an annual basis through official notice or direct contact when circumstances require, there is nothing that can realistically prevent such disclosure between schools short of litigation.  Regarding the prospect of litigation, students and parents must also recognize that, in most instances, litigation will not be a realistic potential solution to preventing such disclosure.  (Litigation, generally in federal court, has met with occasional, limited success in preventing the disclosure of a student's disciplinary record, or vacating the record altogether, although this is very much the exception.)

What will my school disclose regarding my collegiate disciplinary record?

Despite FERPA, there is no definitive law or general practice on what colleges and universities disclose on disciplinary records.  It is ultimately up to the individual school in most instances to determine its own policies and to adhere to that policy.

It may be of some relief to students who were charged with campus misconduct that most schools do not place notations of student discipline on academic transcripts.  In addition, many schools do not take it upon themselves to forward a student's disciplinary record to a receiving institution unless requested by the receiving institution.  This may provide a false sense of security, because, as touched upon above, almost all schools will ask a prospective transfer student if they had ever been the subject of a campus disciplinary investigation or proceeding, and if so, what were the results.  Even if after an investigation, a student was never charged with a disciplinary violation, or even if charged and later found not responsible, a student will often have to disclose such information. 

This potential concern is not unique to transfer students however.  Students seeking admission to undergraduate internships, graduate programs, and related endeavors often will be confronted with similar inquiries.  When applying for professional employment, students in this day and age should anticipate also being asked such questions.  An additional consideration relates to students who will be seeking professional licensing at a later time; future doctors, attorneys, nurses, teachers, and other fields that require professional licensing should also anticipate the prospect of what took place at a school disciplinary proceeding being inquired about as they get closer to their professional goals.

As to the prospect of transferring to another school specifically, most schools from where a student intends to transfer do not include disciplinary records during the transfer process.  This may be a relatively moot issue, however, because even if a disciplinary record is not specifically requested by a prospective school, employer, and the like, students will nonetheless be asked about their disciplinary history, if any, as part of the application process.   If a student has been disciplined, or has any kind of disciplinary history at their college or university, it would be a major risk to not answer such a question accurately because it is relatively simple to confirm such information.  The question ultimately becomes, "Can a student's disciplinary history be sufficiently explained, and if so, is the explanation reasonable enough to allow for the goal they are pursuing, be it transferring to another school, applying to a graduate program, or seeking professional employment for example, to become a reality?"

Will student disciplinary issues be noted on my academic transcript?

A student's academic transcript is obviously an integral part of the transfer process, and because of this, is the most visible and immediate manner to note disciplinary issues.  Students and parents should understand that nothing in FERPA, or in any other law for that matter, prohibits a college or university from notating student disciplinary matters on an academic transcript.

Most schools recognize, however, that in almost all student disciplinary matters, detailed supporting information (which may be either mitigating or aggravating) is not included on the student's academic transcript, thus making the prospect of a disciplinary notation on an academic transcript non-specific and potentially punitive. In addition, the the prospect of a disciplinary notation on a student's academic transcript does not provide the recipient of the official academic transcript sufficient information to distinguish the nature or the severity of the disciplinary action. Nonetheless, the decision to include disciplinary information on a student's academic transcript will be up to the individual college or university in question.

Recent Changes in Recommended "Best Practices" Regarding Campus Disciplinary Issues and Academic Transcripts

A related consideration is that the American Association of Collegiate Registrars and Admissions Officers (AACRAO) has for the past twenty years, since 1996 to be exact, recommended against recording campus disciplinary violations such as alcohol-related offenses, drug-related offenses, harassment, sexual misconduct, or academic misconduct charges such as plagiarism, on an academic transcript.  In light of the climate on today's college and university campuses, the position of the AACRAO has recently changed however.

Colleges and universities face more pressure to include student misconduct and misbehavior and academic misconduct on academic transcripts.  Recent campus violence across the nation is a major factor in this change.  (Colleges and universities are also becoming more thorough in their application process for all students; not just transfer students.  Schools are more rigorously screening prospective incoming students through the admissions process by asking questions about encounters with law enforcement; even if the student was not charged, and if charged, even if the student was not convicted of any crimes.) 

Nonetheless, a recent survey conducted by the American Association of Collegiate Registrars and Admissions Officers found that 95 percent of academic institutions do not include student's "probationary" status for non-academic, behavioral reasons.  85 percent of academic institutions also do not include student's ineligibility due to major violations.  The number of colleges and universities that include such information will most likely increase in the future, however, and may be prompted by legislation to address the matter.  Two states, New York and Virginia specifically, recently passed legislation that requires schools to notate campus disciplinary actions on student transcripts.  The AACRAO also indicates that similar federal action is possible.

In cases where a student's school does notate disciplinary issues on an academic transcript, different schools take different approaches to what is specifically referenced.  Some colleges and universities will notate if a student was suspended or expelled, but not for lesser violations; other schools will include all levels of disciplinary issues, minor or otherwise; other school yet will notate if a student was suspended or expelled, and in doing so, will explain whether the suspension or expulsion was for academic or disciplinary reasons. 

Schools that do note disciplinary issues on academic transcripts generally subscribe to the philosophy that the receiving institution will be made aware of the applicant's disciplinary history, and can follow up to request more information as necessary from the sending school, the student him or herself, or both.  Such schools, however, arguably do not recognize that the notation alone on an academic transcript, with no additional information to explain the circumstances of the disciplinary issue, may end a student's chances of having what they are working towards become a reality.

Final Considerations When Responding to Campus Misconduct Allegations

FERPA mandates address specific aspects regarding a student's disciplinary record, but are not all-encompassing.  Ultimately, colleges and universities can in large part decide their own policies as to how a student's disciplinary history is notated and disclosed to others.

When facing a campus disciplinary investigation or disciplinary charges, students and parents must under the individual school's specific disciplinary policies and procedures.  In case of standard misconduct, this generally accomplished by understanding the school's Code of Conduct; in cases of academic misconduct, the school's academic honor code may be the applicable policy; and in cases of sexual misconduct or Title IX charges, the school's Title IX policy must be understood. 

Taking all necessary steps and all necessary precautions to try to achieve the best possible result if a student is investigated or charged must be a student's and parents' priority.  Responding to allegations of any kind of campus misconduct in a indifferent or unplanned fashion can result in consequences that can be difficult, if not impossible to recover from, depending on the circumstances at hand.  Part of the necessary preparation involved in responding to such allegations is understanding how a potential disciplinary issue or finding will be recorded by the school in question.  This is not ancillary information, but rather, can be an important consideration in deciding on the best course of action.

Resolving Student Disciplinary Issues Nationwide

There are countless considerations that have to be properly addressed when responding to allegations of student misconduct, and it is understandable that students and parents can become overwhelmed when faced with a campus disciplinary proceeding.  Colleges and universities have attorneys in their corner advising them every step of the way, and you should not have go it alone - Contact attorney Joseph D. Lento today to learn how he can help at 888-535-3686.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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