The prospect of dismissal from a university or college for misconduct can be a cause of profound distress to students and parents alike. Whether involving academic misconduct, code of conduct charges, Title IX allegations, or any other issue that can lead to student disciplinary charges, all of your future prospects can seem to be jeopardized by an innocent mistake or a brief failure of judgment. Without seasoned legal advice and a strong advocate in your corner, your worst fears can become a terrifying reality.
How Will I Know if I Am Under Investigation?
Your school's student handbook/guide to student conduct will outline the way students accused of misconduct will be notified. In any event, when best practices are followed, the school will be required to advise the student in writing of the details of the alleged misconduct. This will include the time and date of the purported infraction, which regulation was violated, where it can be found in the student handbook, the name of the accuser as applicable, and other involved parties as applicable.
All of this will be required to happen in enough time for you to prepare a response before an initial interview happen.
(As noted above, these are "best practices". Much of what follows also reference best practices, and also the concerns that can arise with regards to theory versus praxis. It is an unfortunate reality that most schools, even when their policies provide for due process for an accused student, often turn a blind eye to policies that are meant to protect an accused student's rights and interests. In worse case scenarios, some schools actively attempt to persecute an accused student. This is why it is critical to have professional help as early as possible in the process.)
In addition to a school's provisions for providing notice, in some instances, a potential respondent could receive notice in advance of a complaint that is in the system but not yet formalized. You may hear from friends or acquaintances—or on social media—that an allegation is in the works, or the campus police may question you.
Regardless of how or when you learn of a concern, you must take the necessary precautions as your academic and professional career can be at stake. Having professional help from as early as possible in the process is always best.
What if I Withdraw From School?
Depending on the allegations against you, it may be possible to withdraw in advance of formal accusations. In these circumstances, some schools will not pursue a complaint, thereby preserving your academic record from any blemishes. In enough instances for it to be of significant concern, however, regardless of whether a student is in fact a student at the time charges are filed, many schools will choose to pursue a disciplinary process, even proceeding in absentia of the accused.
In contrast to instances where a school can exercise discretion, should you withdraw after the formal complaint is lodged, the college or university will generally be required to investigate the claim anyhow, whether you participate or not, with the latter making it more likely you will be found guilty of the allegation.
An exception is any accusation of a Title IX violation, which permits colleges and universities to dismiss sexual misconduct claims against students who are no longer formally enrolled. (That said, schools almost universally will choose to pursue a Title IX case against an accused student even if the accused student were to withdraw from the school. Additionally, if the alleged act is a crime, you could still face criminal charges no matter your enrollment status.)
What Happens During the Procedural Interview?
Once you have been notified in writing of a complaint, the next step is usually a procedural interview. Whoever has been given the responsibility by the school to conduct the investigation will meet with you in person (or virtually, if that is permissible by school policy) will talk with you about the nature of the charges and how you are alleged to have violated the code of conduct, explain the disciplinary and investigative procedures, and let you know of any actions you need to take immediately.
The purpose of this step is to ensure a student is fully informed, so you are not expected at this point to respond directly to the complaint.
Can't I Just Explain Everything and Make This Go Away?
One of the biggest—and most common—mistakes you can make as an accused student is assuming that if you just own up to the allegations in your own words and from your perspective, everything will be cleared up, and you can go on your way.
Of course, you should be cooperative and be truthful in your responses. But do not under any circumstances assume the school is in your corner. Once a formal complaint is filed, the school's priority is and must be with its response in protecting the rights of any alleged victims.
What that means for you is that everything you say can potentially be used against you. Talk too much or convey more information than you need to via email or text, and you could wind up backsliding into more allegations or cause harm to your case.
So, keep this top of mind: You should be completely sure you understand the exact content of the complaints against you and be very measured in how you respond.
Having a skilled advocate, hired as early as possible, can have a positive impact on this moment in your academic career.
Can I Have a Lawyer Represent Me in the Proceedings?
You can, and you should. Regardless of what your school may or may not prefer, you have a right to an attorney-advisor who can serve as a guide through the disciplinary process and allow you to make a more compelling case in your defense. An experienced attorney will help you within the bounds of school policies, whether directly or in a behind-the-scenes capacity, and if your school is not mindful of your rights, an experienced attorney will make certain the school is called to task on such potential missteps.
This is important because students operate at a disadvantage in these cases—mostly because schools are intimately familiar with the disciplinary process, while this is likely your first encounter with it. Add to that the public pressure schools face from the public to demonstrate their seriousness in dealing with such accusations, and you as a student can be hobbled in terms of your defense.
While school disciplinary hearings are similar to a court hearing or trial, they have some major differences. First, they aren't legally required to follow standard court protocol. Second, you, as an accused student, are often not presumed innocent. Finally, while schools typically include due process for students in their policies, practically speaking there is no guarantee you will receive it.
Read more about your rights regarding due process here.
Can My Parents Be Involved?
It's up to you how much or little your parents are involved, but you'll need to check your school's policies as many schools will assert that neither a parent nor legal advisor is necessary for the proceedings. So, while the school's representatives may try to reassure you that you can handle things on your own, that typically works out better for the school than it will for you.
What is the Attorney's Role in the Process?
The lawyer you hire won't be serving in a legal capacity but will act in an advisory role, as per the rules for many schools. That said, an experienced advisor will have a strong understanding of how the disciplinary process works and how to fight back.
Your attorney can assist with gathering witnesses and evidence in your defense and provide advice on how best to respond to allegations. The school will also tend to take you more seriously, as they are aware that a legal advisor will ensure the school is accountable for its own policies, providing you a better chance at preserving your due process rights.
The Lento Law firm provides expert advice day in and day out to students facing discipline and dismissal nationwide. Learn more about our Firm and how we can support you in your battle to preserve your academic record and career.
My School Isn't in a State Where Your Firm Practices Law. Can You Still Help Me?
The Lento Law Firm helps students at all educational levels overcome challenges day in and day out across the United States. Attorney Joseph D. Lento and his team handle their nationwide representation of students with precision, having helped undergraduate and graduate-level students through very challenging academic circumstances at more than a thousand colleges and universities across all corners of the United States, including Alaska, California, Florida, Hawaii, Maine, Texas, and every other states. His experience extends beyond U.S. borders, advising clients studying abroad in Asia, Europe, the Mideast, and the Caribbean.
Attorney Joseph D. Lento advocates vigorously for his clients, always with the goal of achieving a positive outcome in a given case.
How Will the Investigation Work?
In this phase of the proceedings, the school will conduct a succession of interviews and a review of the evidence in the discovery of facts involved in the alleged incident or violation. (Learn more about the rules of evidence and the Standard of Proof in student disciplinary cases here.)
This will be carried out by a single investigator or multiple employees of the school, whether employed internally or externally, depending on the size and structure of the school's student disciplinary department. The investigator(s) will carry out multiple interviews of the complainant, respondent, and any witnesses. This process can go on for weeks or even months.
The first interview can be shaky ground for you as a respondent because, at this point, you may not fully grasp the nature of the accusations against you. Without this understanding—and without a capable advisor by your side—you may say things to an investigator that may not reflect well upon your case.
Investigators may also deploy aggressive questioning tactics in an effort to undermine your credibility and set you back on your heels. Without proper preparation—which is extremely difficult to do on your own as a student with no familiarity with the process—you may inadvertently omit details or forget to mention important witnesses and potential evidence. Later on, as you spend more time thinking about the circumstances of the incident, you may remember things more clearly and potentially contradict yourself in later interviews.
Another potential landmine lies near the end of the investigation when investigators will ask the respondent to sign off on notes from the interview process to verify these notes accurately reflect the discussions during interviews. These notations will typically be presented to you at the end of what could be several hours of stressful questioning. Having an attorney-advisor with you to review them carefully will help ensure they are, in fact, accurate when you agree to them. This is very important because you may later be held responsible for this version of events.
What Happens at a Formal Hearing?
If you end up having a formal hearing, it's imperative to be as prepared as possible. There may be a time crunch in this regard, as the hearing could take place within days of the interview process. Title IX cases are an exception, requiring at least a 10-day window. (For a detailed discussion of Title IX sexual misconduct matters and how the Lento Law Firm can help in these especially high-stakes cases, click here.)
The hearing may last a day or several. Typically, it will take place in front of a panel or committee, which may already be established for this purpose or may be assembled for misconduct cases as needed. Its composition will vary from school to school, with some having only faculty and staff on the committee and others also including students.
Each side will have a chance to make an opening statement, present evidence, interview witnesses, and make a closing statement. The panel will question the complainant, respondent, and witnesses. There is a wide range of formats and rules among schools, with some allowing for cross-examination of witnesses and others not. In most cases, the complainant and respondent will appear separately. Video and virtual technology may be used.
Again, there is a range of possibilities in terms of what a committee might do at the end of a hearing. They may:
- Immediately determine responsibility and issue penalties on the spot
- Make a determination and recommend a course of action to the school's administration
- Make a determination and leave the penalties to a separate panel
- Adjourn for a discussion to make a determination once the hearing is concluded.
If I Am Dismissed or Feel the Sanctions Are Too Harsh, Can I Appeal?
Both you and the complainant have the right to appeal the school's decision and any penalties they impose before the decision is finalized.
However, appeals are typically allowed only in limited circumstances, including procedural errors, introduction of new evidence not available during the investigation or hearing, demonstrated evidence of bias, and an argument that the penalties are not appropriate for the charge. The window for an appeal is typically only a few days.
Each school makes its own policies on the handling of appeals. Some will convene a separate hearing committee to review the case and, if applicable, any new information that has come to light. For others, the responsibility to review the appeal will fall to the provost or dean. In any event, the decision on appeal is usually issued in a short period of time.
You should know that it's very rare for an appeal to be upheld. However, should it have an effect on the final penalties, the appeal committee or officer may overturn the findings and sanctions altogether, recommend a different formal consequence more in keeping with the nature of the offense, or request a completely new investigation or hearing.
Once again, Title IX cases are governed by their own regulations concerning appeals.
What Does the Lento Law Firm Bring to the Table?
Attorney Joseph D. Lento has the right experience and resources to provide his clients the best prospect of a favorable outcome. Attorney Lento and his team at the Lento Law Firm understand how to ensure students get a fair process and help them to avail themselves of all of their rights in disciplinary proceedings. Attorney Lento and his team have helped countless students in the U.S. and internationally effectively fight misconduct allegations that can affect the rest of their lives. They are preminent in the field of student discipline defense and are nationally-recognized in this arena.
Contact attorney Joseph D. Lento and the Lento Law Firm today for help at 888-535-3686.