A Note to Attorneys:
This web site has been prepared by Eastern Michigan University’s Student Judicial Services to assist attorneys, like yourself, who are representing our students going through the university’s disciplinary process. It has been our experience that attorneys who normally handle criminal cases do not always understand that there are distinct differences, supported by case law, between a criminal case and a campus disciplinary process. This often results in undue delays, unnecessary legal maneuvers, and misinformation to the student going through the process. We want to provide you with the necessary case cites and legal foundations of a campus disciplinary system so that you might better explain to the student/client what to expect during the process. Our goal is to insure that both the University’s and the student’s rights are protected and that the process focuses, whenever possible, on providing solutions that are corrective and educational.
Foundations of a Campus Disciplinary Process
Courts have consistently delineated the right of academic communities to discipline students for behavior that violates the student conduct code, independent of any criminal process and regardless of the outcome of any criminal investigation. The courts have also determined and defined the differences in due process between an educational institution and a criminal system, as follows:
“…the attempted analogy of student discipline to criminal proceedings against juveniles and adults is not sound. The nature and proceedings of the (campus) disciplinary process…should not be required to conform to federal processes of criminal law, which are far from perfect, and designed for circumstances and ends unrelated to the academic community. By a judicial mandate to impose on the academic community and student discipline the intricate, time-consuming, sophisticated procedures, rules, and safeguards of criminal law would frustrate the teaching process and render the institutional control impotent…”
44 F.R.D. (142) (W.D. Mo.)
General Order on Judicial Standards of Procedures and Substance of Student Discipline in Tax-Supported Institutions of Education
A number of Landmark cases have helped establish the basic rules and standards of due process required in university disciplinary processes. These cases lay the foundation upon which Eastern Michigan University has established its student disciplinary process.
Landmark Cases:
Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961)
Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969)
Goss v. Lopez, 419 U.S. 565, 579 (1975)
Osteen v. Henley,13 F.3d 221 (7th Cir. 1993)
Additional cases applicable to and helpful in understanding the student disciplinary process versus the criminal process:
Gorman v. University of Rhode Island, No. 86-2101, U.S. Court of Appeals, first circuit, 837 F.2d 7; 1988 U.S. App. Lexis 402, January 19,1988, decided.
Ingraham v. Wright, No. 75-6527, Supreme Court of U.S., 430 U.S. 651; 97s.Ct. 1401; U.S. Lexis 74; 51 L.Ed. 2d 711, argued November 2-3, 1976, April 9,1977, decided.
Paine v. Board of Regents of the
Slaughter v. Brigham Young University, No. 74-1208, U.S. Court of Appeals, tenth circuit, 514 F.2d 622; 1975 U.S. App. Lexis 15178, April 14, 1975, decided.
Soglin v. Kauffman, 418 F.2d 163; (7th Cir; 1969).
Relevant
Kaplin, William A. and Barbara A. Lee. The Law of Higher Education, Third Ed.
Kaplin, William A. and Barbara A. Lee. A Legal Guide for Student Affairs Professionals.
Paterson, Brent G, ed and William A. Kibler, ed. The Administration of Campus Discipline: Student Organization and Community Issues.
Picozzi, James M. University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get. The Yale Law Journal. Vol. 96: 2131, 1987.
Differences between Criminal Processes
and Campus Disciplinary Processes
In each of the preceding cases, courts have clarified the differences between a criminal proceeding and a campus disciplinary system, as well as setting the minimal procedural safeguards necessary in a campus proceeding. Some of the more significant differences are listed below:
Burden of Proof
Criminal: Beyond a reasonable doubt
Campus: Preponderance of evidence
Evidentiary Standard
Criminal: Strict rules of evidence apply
Campus: Allows all reasonable evidence, including hearsay
Right to Counsel
Criminal: Yes
Campus: Limited to when student is charged concurrently with a crime. Can restrict attorney’s role to advisory only
Basis of Charge Against Student
Criminal: Violation of the law
Campus: Violation of the Student Code of Conduct
Disciplinary Philosophy
Criminal: Penalties are designed to punish
Campus: Sanctions are designed to both punish and educate
Outcome of Process
Criminal: Found to be guilty or innocent
Campus: Found to be in violation or not in violation of the student conduct code
Right of Appeal
Criminal: System provides for appeals
Campus: An appeal process is recommended, but is not required
Double Jeopardy
Criminal: Cannot be tried twice criminally for the same offense
Campus: Does not apply since campus judicial processes are
administrative, not criminal
Purpose:
In support of the overall goals of Eastern Michigan University, the purpose of the Student Conduct Code, administered by the office of Student Judicial Services, is to maintain a campus environment that is conducive to learning, protects the university’s educational purposes, maintains reasonable order on campus, and protects the rights of all members of the University’s community. The Student Conduct Code and the accompanying student disciplinary processes are intended to foster ethical development, personal accountability and civility toward others.
The code embraces several core philosophies: preservation of the rights of free speech and peaceable assembly; respect for freedom of inquiry and constructive criticism; a conviction that honesty and integrity are key values to the University community; and the belief that all members of the University should be part of a campus environment that respects differences of culture, gender, religion, race, age, lifestyle, or ability.
The purpose of University discipline is to be corrective and educational as well as punitive. EMU promotes acceptable behavior by assigning appropriate disciplinary sanctions for students who violate the rules. The student disciplinary process at
Jurisdiction:
EMU has jurisdiction over misconduct that occurs on University premises, at University-sponsored activities or events, and off-campus behavior if the behavior or the continued presence of the student impairs, obstructs, interferes, with or adversely affects the mission, processes, or functions of the University. A student that commits a criminal offense off campus may also be subject to University discipline if the student is in violation of the Student Conduct Code.
EMU does have the right to pursue disciplinary action concurrent with action taken on criminal charges for the same offense. The resolution of charges by the University is not affected by the decision made in the criminal proceedings. “Double Jeopardy” is not a concept applying to academic communities and their disciplinary processes. Campus judicial processes are administrative, and “double jeopardy” is strictly a criminal concept.
EMU will proceed with judicial proceedings in a timely manner even when concurrent criminal charges exist. Students may submit a request to delay the disciplinary proceedings if they can demonstrate that their rights will be infringed upon if the disciplinary process goes forward at the same time as the criminal proceedings.
Procedural Safeguards and Rights of Students:
The EMU Student Conduct Code, available to all students, outlines the campus rules and the disciplinary process. The conduct code provides the following safeguards to students going through the disciplinary process:
1. Adequate notice of all charges and proceedings.
2. A limited right to an attorney. The student has the right to engage an attorney, at the student/ student organization’s own expense only when criminal prosecution is pending on charges stemming form the same incident. The attorney may appear at the proceedings with the student(s) to provide advice, but may not represent the student(s)/student organization, directly question or cross-examine witnesses, or, in any other way, participate in the proceedings. Students wishing to have information shared with their attorney may sign a release of information at SJS, as is consistent with the Family Educational Rights and Privacy Act of 1994.
3. The right to have a voluntary advisor present who may participate in the proceedings. The advisor must be a member of the university community, and if the advisor is another EMU student, she/he must be in good standing.
4. A reasonable review of the disciplinary case file maintained by Student Judicial Services prior to a formal hearing and/or appeal.
5. The opportunity to question and cross-examine any witnesses and the complainant.
6. Within reason, the opportunity to present witnesses and submit any pertinent, supportive documentation. The hearing board, by a 2/3 vote of members present at the hearing, may limit the number of witnesses in order to avoid dilatory tactics.
7. The right to challenge a judicial board member on the grounds of bias, conflict of interest or any other factor that could preclude the board member from rendering an impartial and fair decision.
8. A written statement of the outcome of the proceeding, and a description of the appeal procedure.
9. The right to make a taped recording of the proceeding at their own expense.
10. The right to appeal the decision of the university judicial board, subject to provisions of the Student Conduct code, Section IX.E: Appeal of Formal Hearing Results.
Offenses Subject to Disciplinary Action at EMU
The following prohibited behavior is subject to disciplinary action at
An individual, a group of individuals or a student organization may be charged with any of the violations. In cases where a violation is committed by an individual member of a student organization, the entire organization may be held responsible, in addition to the individual member, when those members not directly involved participate in the activity by encouraging, witnessing or condoning the act in any manner.
Academic Dishonesty
Alcohol Violations
Computer Misuse
Discrimination by Student Organizations
Disruptive Conduct
Drugs
Failure to Comply
Falsification/Fraud/False Testimony
Fire and Safety
Gambling
Guests
Harassment/Stalking
Hazing
Physical Abuse and Endangerment
Property/Facilities/Services
Sexual Misconduct/Sexual Harassment
Weapons/Firearms/Explosives
Other Violations
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