Student misconduct covers a wide range of allegations, including academic misconduct, sexual violence or harassment, and other misconduct. When you or your child are facing a charge of misconduct in school, it can be confusing and overwhelming. Standards vary widely not just from state-to-state, but also school-to-school. To make things even more complicated, schools' own interpretations of what constitutes misconduct, methods of investigation, and sanctions may also change from year-to-year. Here, we will guide you through some examples of how definitions of student misconduct have shifted—from historical examples to more current incidents—along with issues connected to Title IX and its ongoing revisions.
History of Student Misconduct
According to a 2011 Rutgers University study, 40% of college students admit to cheating on tests, 17% admit to cheating on writing assignments, and 43% admit to cheating on either a test or writing assignment. In 2011, a survey of New England high school students reported that a whopping 95% of those students admitted to engaging in at least one form of academic cheating during the last school year. Simultaneously, 57% of those students agreed with the statement, “It is morally wrong to cheat.”
Bad habits can be hard to break, and some students continue to cut corners at the college level and beyond. The stakes when accused of misconduct, however, significantly increase with each passing level of education - college, graduate or professional school, PhD programs, and so forth - and what may have been met with a "slap on the wrist" at the high school level can have severe short and long terms consequences for a student's academic and professional goals once they are in college and beyond.
Despite these concerns, academic misconduct is nothing new. As long as there have been students and tests, students have cheated. We know that thousands of years ago, some Chinese civil servant applicants cheated on their civil service exams. According to the South China Morning Post, during the Ming and Qing dynasties from 1368 to 1911, students would smuggle in tiny books the size of a matchbox with text the size of grains of rice by sewing them into their clothing or shoes. They did so, even when the penalty for cheating could be public shaming, being stripped of academic certificates, and even death.
In 1822, at the University of Virginia, a group of students rioted on the university's famed lawn. Responding to the incident, Thomas Jefferson stated:
The article of discipline is the most difficult in American education. Premature ideas of independence, too little repressed by parents, beget a spirit of insubordination, which is the greatest obstacle to science with us, and a principal cause of its decay since the revolution. I look to it with dismay in our institution, as a breaker ahead, which I am far from being confident we shall be able to weather.
Aside from reassuring us that adults have always looked at younger generations with dismay, Jefferson's words hint at a larger truth. In fact, in the 1800s and early 1900s, it was common for students to riot at U.S. universities if they didn't like a unilaterally handed down punishment, the rules, or even the food. (Harvard's Rotten Cabbage Rebellion of 1807 was particularly notorious.)
But as universities evolved, student honor codes began to emerge.
Fourteen years after Jefferson had complained about the unruly behavior on his campus, there was another riot at UVA—but during that uprising against professorial authority, a student shot a law professor. Students themselves hunted down the culprit and turned him in. It is no coincidence that the university had recently developed a student honor code. For the first time, students banded together with the administration, agreeing that there should be reasonable limits to student conduct, and reporting misbehavior was honorable.
While academic misconduct allegations are nothing new, the standards to which we hold students in and out of school has changed. Navigating the shifting landscape of student academic misconduct can be challenging.
The Role of Due Process in Modern College Misconduct Adjudication
Modern disciplinary methods and procedures arose from the landmark case Dixon v. Alabama State Board of Education. In that case, the Fifth Circuit's Court of Appeals held that students had an interest in their continued enrollment at an institution of higher learning, akin to a property interest.
Dixon and five other plaintiffs were students at the Alabama State College for Negroes in 1960, when they entered a lunch counter in the basement of the county courthouse. After the owners denied them service, the students refused to leave. The police removed the students, and they eventually faced trial. The Alabama State Board of Education then voted to expel them and sent the students letters notifying them of their dismissal.
The court concluded that the students were entitled to notice of the disciplinary procedure and due process, although the college was not obligated to conduct a not a full-blown trial.
As a result, the Dixon decision established that colleges and universities must offer some due process to students facing misconduct charges, rather than unilaterally expelling them.
But the due process afforded students accused of misconduct varies significantly between public and private schools. In a 2005 case, Flaim v. Medical College of Ohio, the college expelled Flaim for a felony drug conviction. Returning to Dixon's due process standards, the Sixth Circuit's appellate court declared that the more serious the charge, the more process is required. However, the court reiterated that students are not entitled to the due process of a full-blown criminal trial. Therefore, students aren't allowed to cross-examine witnesses or have an appeal unless the university's procedures provide for them.
It's also important to note that both the Flaim and Dixon cases involved state institutions. As a result, the constitution more strongly protected the students of these institutions, since the universities were considered state actors who are subject to the due process requirements of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
However, private universities and colleges are not state actors; therefore, they do not face the same mandates of due process of the state schools, and they have much more latitude in determining their procedures.
It's not just due process and appeal rights that vary between public and private schools. Standards of behavior, and the very definition of misconduct, can vary significantly. For example, academic misconduct typically includes cheating and plagiarism, but even those turn out to be broad categories of wrongdoing that each college or university may define student misconduct differently. Consider some of the behaviors that the University of California at Berkeley includes in its list of academic misconduct:
- Copying from others on an assignment or exam
- Communicating with others during an exam
- Preprogramming a calculator with answers or unauthorized information
- Submitting the same work for more than one assignment without prior authorization
- Collaborating on an assignment or exam with another person without permission
- Having others do a portion of your work for you
- Using a commercial term-paper service
- Wholesale copying of passages into an assignment, paper, or exam without a citation
- Using insights, ideas, or opinions of another without a citation
- Paraphrasing someone else's metaphor, phrasing, or literary device without a citation
- Removing, defacing, hiding, or keeping course materials from another student
- Fabricating, falsifying, or altering information in an assignment or providing misleading or false information to an instructor or university administrator can be a violation.
- The theft of intellectual property includes things such as accessing or interfering with someone else's property electronically.
Altering school documents can include:
- Submitting altered transcripts
- Altering a grade
- Putting your name on someone else's work
Creating a disturbance in a classroom to give yourself an academic advantage like:
- Calling in a bomb threat
- Activating a fire alarm without cause
- Disrupting college activities to disrupt free speech
- Interfering with the instructor to the detriment of other students
By contrast, Navarro College, a Texan community college, has a much less exhaustive list of academic integrity violations. Its academic integrity document specifically defines plagiarism, collusion, and multiple submissions, stating that violations may include:
- Copying from another person's test paper or academic work
- Collaborating without authority with another person during an examination or in preparing academic work
- Buying, selling, stealing, transporting, bribing, or soliciting anyone to obtain the contents of a test prior to its being fully administered or without permission
These specific examples are by no means exhaustive. They just demonstrate that even what are theoretically the same issues, in practice, may be different from campus to campus.
If a school accuses you or your child of misconduct, you'll need to review your school's standards and conduct documents carefully. Penalties for academic misconduct can range from a failing grade on a single assignment to expulsion. The repercussions of an academic misconduct allegation to a student's life and future can be severe, making it essential to consult an attorney.
Title IX and Sex Discrimination in School
A 2014-2015 study of 27 universities by the American Association of American Universities revealed that one-third of undergraduate female seniors reported experiencing nonconsensual sexual contact at least once during their college careers. When reported, schools are required by law to investigate under federal Title IX legislation.
Title IX is a federal civil rights law passed as part of the Education Amendments of 1972 prohibiting sex discrimination in schools, from elementary schools to colleges and universities. The law 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.
In other words, under Title IX, schools that receive federal funding are legally obligated to respond to and remediate hostile educational environments or risk losing federal funds, and a wide range of Supreme Court decisions and guidance from the U.S. Department of Education have used an expansive application for what constitutes that hostile environment. Title IX violations can include everything from sexual assault and harassment to discrimination in admissions decisions, student athletics, and treatment of pregnant students.
As with academic and other misconduct claims, changes to Title IX regulations and case law result in a constantly changing definition of misconduct. Until recently, regulations for Title IX defined sexual harassment very broadly, and publicly funded educational institutions were liable for incidents they knew or “reasonably should” have known about.
The regulations were complicated and often clarified every few years. Universities often misinterpreted obligations to investigate or denied students' and employees' due process. Many people accused of sexual misconduct under Title IX argue that their due process rights were violated by Title IX offices that failed to notify students of allegations, denied the presumption of innocence, or summarily removed from campus. More than 500 of these cases have ended up in court.
While students and employees at public institutions had some recourse for due process violations during Title IX proceedings, students at private institutions are much less likely to succeed in such claims.
New Title IX Regulations
In May 2020, the U.S. Department of Education announced sweeping changes to the way colleges and universities must handle title IX sexual assault and harassment claims. The changes, which will take effect on August 14, 2020, narrow the scope of complaints that colleges must investigate. Now, Title IX will cover only harassment that meets the new definition of “unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive and objectively offensive,” that it effectively denies a person equal access to education.
Title IX misconduct allegations are serious, and the repercussions can have long-lasting effects on your academic and professional careers. If a school or college accuses you or your child of misconduct, you should consult an attorney as soon as possible.
Other Variables Can Affect a Misconduct Investigation
If varying definitions of misconduct, changing Title IX regulations, and case law weren't enough to digest, other factors can also affect misconduct claims, including faulty memories and investigators' bias. Even how witnesses or university officials report alleged misconduct can impact the outcome of a proceeding.
While it is a constant of television police procedurals, decades of research has shown that eyewitness testimony is unreliable. In fact, even if a person is confident in their recollections, the malleable nature of human memory and visual perception still makes witness testimony one of the most inaccurate forms of evidence. Therefore, if the only evidence of student misconduct is through eyewitnesses, the evidence may be much less clear-cut than it initially appears.
How school officials record witness perceptions can also be wrong, especially if there's any indication that an investigator or administrator involved in the adjudication is biased.
For example, Washington State University recently investigated its disciplinary processes after a 2016 disciplinary case involving five WSU football players. During one hearing, some members of the conduct board made statements indicating they were holding the players responsible before receiving all of the evidence. The players also reported that one of the board members made statements about the football team and its tolerance for violence against other males. These examples at WSU reveal how easy it is for personal bias or perception to influence a student's misconduct proceeding.
Do I Need an Attorney?
If you or your child are facing a misconduct or Title IX allegation, the school may insist that you do not need an attorney—because you aren't subject to a criminal proceeding, and the school may not even allow an attorney to be present during hearings. If that's the case, should you consult an attorney anyway? Yes, without a doubt.
Academic misconduct allegations are a serious matter, with long-term repercussions, both on- and off-campus.
First off, while the on-campus review is not a criminal proceeding, evidence and statements discovered during the campus review can be used in subsequent criminal proceedings.
Second, if you have a negative outcome, penalties for student misconduct can vary from failing grades to suspension and expulsion. You could face a loss of credits or a degree, as well as face challenges if you apply to another school, college, or graduate program. You could lose scholarships, federal grants, and athletic eligibility. And after graduation, it may impact future employment opportunities.
Even if your attorney can't directly participate in a misconduct hearing, it's good to consult an attorney as soon as you know about the misconduct allegation: Most schools offer a short period to enter a response, gather witnesses, and review any related documents. Your attorney can help you prepare your defense and ensure that your school is following its procedures.
Attorney Joseph D. Lento has spent many years passionately advocating for clients and others in his charge. He represents clients at colleges and universities across the country in Title IX and other educational misconduct claims. He has helped countless students, professors, and other academics n more than 1,000 schools across the nation. Contact the Lento Law Firm at 888-535-3686.