When a college or university student is accused of any kind of misconduct, whether a violation of the school's Code of Conduct, an academic integrity charge, or a Title IX sexual misconduct offense, the student's college or university will launch an investigation into the allegations. This will be the case whether the student is accused by another student; a professor or other University official, including resident advisors for example; or law enforcement authorities in cases where local police, for example, report student's alleged criminal acts to school authorities.
The specific nature of the alleged misconduct will determine how the college or university's investigation into the matter will proceed. Different schools also have disciplinary approaches to who will conduct the investigation. Some schools will have their campus police or their department of public safety conduct an investigation. Other schools will assign an investigator or a team of investigators to conduct inquiries into the matter. Investigators may work directly for the college or university, or the school may hire outside investigators to conduct the investigation. Other schools yet will have their Dean of Students conduct the investigation with the assistance of an investigator or investigators, again, either employed by the school or hired specifically to conduct the investigation at hand. In matters that involve allegations of Code of Conduct disciplinary violations and allegations of academic misconduct, colleges and universities often have broad discretion regarding how an investigation into the matter is conducted.
What rights does a student have in a college or university disciplinary investigation?
What procedural rights are afforded to students under investigation, or even students that are subject to the investigation but are not alleged to have committed wrongdoing, is largely at the college's or university's discretion. That being the case, students and parents must also understand that there are fundamental differences between what rights a student has who attends a public college or university versus a student who attends a private college or university.
Public schools in New Jersey and Pennsylvania are required to provide students with certain protections and due process under the Constitutions of New Jersey and Pennsylvania respectively, in addition to the protections and due process afforded under the United States Constitutions. Private schools in New Jersey and Pennsylvania, however, are not held to this standard, and are therefore not required to provide "due process" to students in the traditional sense. As a result, students at private colleges and universities do not have the same protections and safeguards that are afforded to students at public school; albeit protections and safeguards that are arguably very limited in scope even at public schools. Private schools must, however, afford students the rights articulated by a particular school's policies. A private school must abide by it own policies, otherwise it can be subject to adverse legal action (breach of contract for example) if it: 1) infringes upon a student's (very limited) rights; and 2) said infringement results in adverse consequences to the student.
Because there is no traditional due process at private schools, it generally will be much more difficult for a student who attends a private school to make a valid legal claim that said student's rights were infringed upon versus a student who attends a public school; where such a task also has significant obstacles to success.
How are college and university Title IX investigations conducted?
Although public and private schools have discretion as to how an investigation is conducted, because of federal policies set forth by the Department of Education's Office of Civil Rights (DOE-OCR), and also the fact that school make dedicated efforts to remain in compliance with such policies (arguably because federal education funds are at stake), Title IX cases in particular require that colleges and universities adhere to certain requirements as to how investigations take place. For colleges and universities, whether public or private, to remain in compliance with DOE-OCR policies, Title IX investigations must be completed with 60 days from the date a Title IX complaint is made barring any extenuating circumstances. If a school fails to complete the Title IX disciplinary investigation within 60 days, the school can be subject to investigation itself and disciplinary action by the DOE-OCR.
"Complainants" in Title IX cases, and accused students in such cases, also known as "respondent," may also have a legal claim against their school is the Title IX investigation is not conducted in the manner outlined by the DOE-OCR. Arguably because of the federal funds at stake and also the potential negative public exposure for failing to properly conduct a Title IX investigation, and as necessary, Title IX disciplinary proceedings, colleges and universities make dedicated efforts to ensure that such cases are properly investigated and handled. Even with that being the case, however, schools do mishandle Title IX investigations and Title IX cases; hence the reason that, across the nation, there are more than 300 colleges and universities under DOE-OCR investigation. Title IX disciplinary investigations are particularly serious due to the nature of the allegations involved and also the prospective consequences that can result from any action taken against the accused student at his or her school, and also the prospective consequences that can result outside of the college or university setting. Because of this, it is critical that students and parents understand how to defend against Title IX charges.
Can a student review the college or university's investigative report prior to a disciplinary hearing?
After the necessary parties and any relevant witnesses are interviewed, often on multiple occasions, and after all relevant evidence is requested and submitted, the investigation will be concluded. Regardless of a particular school's policies regarding its investigative process (the "who, what, why, when, where, and how" ), upon completing the investigation, the college or university will prepare an "investigative report." The investigative report is often by the investigator or investigator themselves, but may also include input from University officials, and also outside law enforcement depending on the circumstances of the particular investigation.
In disciplinary cases involving Code of Conduct violations or academic misconduct, accused students (and their advisor/attorney) will in most instances be afforded the opportunity to review the investigative report at a specified time and in a setting designated by the particular college or university. The setting itself may be the Dean of Students Office, the Title IX Coordinator's Office, the campus police department, the department of public safety, and the like, and will depend on the particular school's policies in this regard. In disciplinary cases involving Title IX sexual misconduct allegations, both the "respondent" (and the respondent's advisor/attorney) and the complainant (and the complainant's advisor/attorney) will be afforded to review the investigative report. (At some colleges and universities where "personal harm," "personal abuse," or an equivalent disciplinary violation is alleged towards another student, the alleged victim is also afforded the opportunity to review the investigative report.)
Whether involving prospective Code of Conduct, academic misconduct, or Title IX charges, the accused student (and also the complainant in Title IX cases) will be supervised in some capacity while afforded the opportunity to review the investigative report. Regardless of the setting where the disciplinary investigative report can be reviewed, students and any other involved parties will almost never be allowed to make copies of the report or leave the designated setting. In some instances, accommodations can be made for a student's attorney to review the investigative report on days and times that are convenient to the attorney, but any accommodations will be up to the discretion of the particular college or university, and will dependent upon the particular circumstances at hand.
Can a student request that a disciplinary investigative report be changed?
If an investigative report contains incorrect information (that is not subject to argument regarding the issues at hand) or fails to include necessary relevant information, not only should accused student's bring such information to the investigator's or school's attention, an accused student must do so in order to protect their rights and interests moving forward.
If the investigative report is incomplete, inaccurate, or incorrect, an accused student may not be able to raise these issues at a later time; if, for example, charges are filed against the student and disciplinary proceedings commence. In addition, if an accused student fails to address an investigative report's inadequacies, and then later tries to raise any related issues at a disciplinary hearing for example, the fact that the accused student failed to do so at a prior time, and when afforded the opportunity to do so, can be used against the student in the school's decision regarding whether or not the student is responsible for the alleged student misconduct and charged conduct.
What are the potential consequences at a college or university disciplinary hearing?
Students at colleges and universities in New Jersey, Pennsylvania, and nationwide are charged with disciplinary offenses more often than may be understood, and as importantly, when charges are filed against a student, every precaution has to be taken so that an adverse outcome can avoided. Code of Conduct, academic misconduct, and Title IX charges alone can be detrimental to a student's goals. If the disciplinary case does not result in a favorable outcome for the accused student, and there is a finding of responsibility against the student, the consequences can last a lifetime.
Academic and professional goals can be sidetracked or altogether cut short by findings of responsibility and consequent sanctions even for alleged student misconduct that may seem relatively benign. Students and parents may believe that Title IX sexual misconduct charges may be more likely to result in more severe consequences than those that come of Code and Conduct and academic integrity charges, but this would also be a mistake. Title IX charges are of course extremely serious by their nature, but regretfully, families often only come to realize just how much of a negative impact such proceedings can cause after their son or daughter proceeded on their own through the particular school's disciplinary investigation and disciplinary process.
Only after receiving an unexpected and adverse finding and consequent sanctions do students and parents realize just how serious their situation was, and again, such a realization regretfully occurs after the fact. Before proceeding on one's own and before taking the necessary precautions, it is critical to understand that suspensions and expulsions are the applicable sanctions in more instances than students and parents may realize. If a student receives such a sanction for example, and figures that they can continue on with their academic goals by transferring to another school, a suspension or expulsion (and even lesser sanctions) can make prospective schools extremely reluctant to accept such a student, if that prospective door is not shut altogether. Other unexpected consequences can include, among other adverse ramifications, the loss of housing, financial aid, and scholarships, including academic, athletic, or ROTC scholarships for example. Admission to graduate schools and obtaining professional employment can also be seriously jeopardized.
Approach the Student Disciplinary Investigation Properly
Trying to mitigate an adverse finding and sanction after the fact is often (but not always) a losing proposition. The best strategy is to be proactive in addressing prospective disciplinary charges, and to prepare the best possible defense to prospective charges. As part of the best possible defense is understanding how a student's college or university conducts its disciplinary process, in particular, how the school's investigation will be conducted, and what rights and responsibilities an accused student has during the course of the investigation.
Because charges are often filed based on the results of the college's or university's disciplinary investigation, students and parents must regard the investigation, and the resulting investigative report with the necessary attention. Students, by their nature, are often young, and may not understand or appreciate the seriousness of being subject to a campus disciplinary investigation. In some instances, accused students may be reluctant to review the investigative report at all.
Whether because of inexperience, a mistaken belief that the investigative report can be "avoided," or something else, accused students in particular may not recognize their obligations regarding reviewing and addressing any deficiencies in their school's investigative report prior to disciplinary charges being filed. Students must be proactive in this regard because not understanding or not appreciating the situation will not help mitigate the potential life-changing consequences that can come from an adverse disciplinary finding and sanction.
Regardless of where in academia one stands - an undergraduate student, graduate student, medical student, law student, international student, and so forth - the stakes will always be high in campus disciplinary proceedings. In New Jersey, Pennsylvania, and nationwide, attorney Joseph D. Lento and the Lento Law Firm have helped countless students at all stages of campus disciplinary proceedings, including investigations, hearing, and appeals, and in matters involving Code of Conduct, academic misconduct, and Title IX allegations and charges. He has worked both behind-the-scenes to successfully resolve student disciplinary issues, and often hand-in-hand with colleges and universities to achieve favorable resolutions to cases that are always serious in light of the potential consequences, both short and long-term. Contact attorney Joseph D. Lento today to learn how he can help.