College Students Often Caught Off Guard by Code of Conduct
Q: What is a college code of conduct?
A: The code of conduct is a set of rules that governs student behavior on campus. This includes the regulation of academic behavior (e.g. plagiarism, cheating, academic dishonesty), as well as non-academic behavior (e.g., alcohol or drug violations, hazing, harassment, sexual assault).
Courts view codes of conduct as contracts between students and colleges, and hold that students agree to the terms of these contracts when they enroll. The terms can be surprising and regularly catch students off guard. Unfortunately, students usually don’t read the “contract” until after they have been accused of an infraction.
Q: Can the code of conduct be applied off campus?
A: Yes. The code of conduct can regulate some off-campus activity. Courts have held this to be a proper extension of the school’s jurisdiction so long as the school properly identifies the prohibited, off-campus behavior in the code of conduct and there is some connection between the behavior and campus. For example, colleges may impose sanctions for out-of-control parties (in which other students attend), stalking or harassment of another student off-campus or actions that demonstrate unprofessionalism for a particular profession.
Q: Can I use an attorney for code of conduct proceedings?
A: Yes, but codes of conduct may limit your use of an attorney. Even for public universities, courts have determined that students do not have an absolute right to counsel in code of conduct proceedings. The right to counsel only exists when an attorney appears on behalf of the university or when the proceeding was “subject to complex rules of evidence or procedure.”
Your school may allow you to use an attorney, but in an “advisory capacity” only. This means that the attorney can advise you, but cannot speak on your behalf. This is commonly called “potted plant” representation. Attorneys may not be allowed at all for purely academic issues (e.g., grade appeals). Private schools may also prohibit the use of attorneys because certain constitutional due process protections may not apply.
Q: Why should I hire an attorney who can only advise me?
A: You may think that hiring an attorney is futile in such a circumstance, but an attorney can help in a number of ways. The attorney can: help you understand the risk involved in requesting a hearing versus accepting responsibility; help you prepare questions and evidence; identify additional protections that may exist (e.g., protections for disabled students, minimal constitutional due process standards, etc.); and provide guidance throughout the hearing itself. There are also several factors to consider if you are facing a pending criminal charge in addition to a code of conduct violation. When procedural errors do occur, attorneys can help students properly identify the errors and file an appeal.
Q: How much evidence must the school have against me in order to find me guilty of a code violation?
A: Regardless of the alleged conduct, the “preponderance (greater weight) of the evidence” standard is universally applied during code of conduct hearings. Very little evidence may be used to find a violation. This can be a rude awakening, especially for students charged with violations that may result in a substantial suspension or dismissal. Dismissed students can be left holding hefty student loan debt with no corresponding degree, all based on a panel’s determination that it was “more likely than not” that a violation occurred.
Q: Can the school fine me?
A: Yes. Some schools impose monetary fines for code of conduct violations. Fines can range from nominal amounts to several hundred dollars. Schools cite fines as a deterrent to unwanted behavior, although the practice has raised some ethical questions in the last few years.
Q: Can I appeal a decision?
A: Yes, but the time to appeal a code of conduct panel decision can be very short, often between three and seven days. You may lose your right to an appeal simply by taking too long to check your mail or consult with an attorney.
This “Law You Can Use” column was prepared and published for use by the Ohio State Bar Association (OSBA). It was authored by Mark A. Weiker, an attorney with Albeit Weiker, L.L.P., who practices education law and represents students and educators. The column offers general information about the law. It is not intended to be legal advice. Seek an attorney’s advice before applying this information to a legal problem.
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