A student discipline case recently made its way to the Massachusetts Supreme Judicial Court.  The case, Schaer v. Brandeis University, 432 Mass. 474 (2000), involved accusations of rape by one student against another.  At stake for Brandeis were the integrity and autonomy of its student discipline system. For Schaer, at stake were his reputation, student records and his future at Brandeis and afterwards.

Fortunately for Brandeis, the court dismissed Schaer’s complaint, finding that Brandeis had conducted its student discipline proceedings with “basic fairness” and had met the student’s “reasonable expectations.”  In doing so, the court followed the vast majority of jurisdictions in granting considerable deference to schools and colleges in student academic and discipline matters.  For private institutions, courts generally will uphold student discipline decisions where there was at least some evidence to support the decision, no evidence of obvious bias or improper motives, and a modicum of procedural due process — normally notice and a hearing.  Public institutions are generally required to provide more procedural due process than private institutions.  As a general rule, the greater the property interest at stake, the greater amount of process due.  See Goss v. Lopez, 419 U.S. 565 (1975); Dickson v. Alabama Board of Education, 294 F.2d 150 (5th Cir. 1961).

Schools and colleges may, of course, grant their students greater rights than are required by the courts.  When doing so, through student or parent handbooks or the like, schools and colleges should keep in mind the following guidelines to ensure effectiveness and decrease litigation risks.

Do

Review and publish regularly

It is crucial to keep both students and staff regularly informed of student discipline policies and to ensure that the policies are up to date.

Involve counsel

Involving legal counsel early and often will greatly reduce litigation risks.

Keep it simple

Students and staff are more likely to misunderstand and misapply complicated policies.

Make a record

It will preserve the evidence supporting the disciplinary decision and make any review easier and more accurate.

Retain flexibility and discretion

Expressly reserve the discretion to change policies, procedures and sanctions.  It is also advisable to use a catchall provision stating that procedural mistakes will not invalidate a student discipline decision that was otherwise fair under the circumstances.

Emphasize non-academic graduation requirements

This will give the institution strong grounds for withholding diplomas for non-academic misconduct.

Don't

Use court standards, rules or legalese

Contrary to popular belief, student discipline proceedings are not bound by the rules of criminal or civil procedure, rules of evidence or burdens of proof, unless the school or college agrees to be bound by them.  For example, one of the problematic issues facing Brandeis was its adoption of the “clear and convincing evidence” standard which has a specific meaning in courts of law.

Delay

For the protection of all involved, disciplinary proceedings should be held as soon as possible.  They need not wait for the determination of related court proceedings.  Alternatively, there should be a procedure for immediately suspending students while court proceedings are pending.

Make guarantees

Except for a guarantee of basic fairness, all other guarantees create unnecessary risks for the institution.

Forget "e-misconduct"

Students should receive the same sanctions for misconduct by electronic means as they would if the misconduct had occurred in person or hard copy.

Allow appeals on the merits

Generally appeals should be limited to review of overall fairness or procedural requirements.  Review of the merits of a decision may create a record of inconsistent results and increase the risks in litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.