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A Model Student Conduct Code for the 21st Century

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A Model Student Conduct Code for the 21st Century Edward N. Stoner II enstoner_at_adelphia.net John Wesley Lowery, Ph.D. jlowery_at_gwm.sc.edu Introducing the Presenters Ed ... – PowerPoint PPT presentation

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Title: A Model Student Conduct Code for the 21st Century


1
A Model Student Conduct Code for the 21st Century
  • Edward N. Stoner II
  • enstoner_at_adelphia.net
  • John Wesley Lowery, Ph.D.
  • jlowery_at_gwm.sc.edu

2
Introducing the Presenters
  • Ed Stoner, B.A. DePauw Univ. 69, J.D. U.Va. 72
    retired partner, Reed Smith LLP admitted to
    practice PA, FL, US Sup Ct former President and
    Board Chair, NACUA founding member of ASJA
    Board member, CALCASA. Author of 90 Model Code.
  • John Lowery, B.A. U.Va. 90, M.Ed. U.So.Carolina
    92, Ph.D. Bowling Green S.U. 00 former ASJA Bd
    of Dir. former NASPA Bd of Dir Assistant
    Professor of Higher Education and Student
    Affairs, University of South Carolina.

3
Thomas Jefferson and the Spirit of Insubordination
  • Riots at the Charlottesville campus caused by
    alcohol . . . resulting in assaults on
    professors and other ungentlemanly conduct.
  • Mr. Jefferson and two other leaders examined
    student conduct and the states commitment to
    such a University.

4
Mr. Jefferson and the Spirit of Insubordination
  • The article of discipline is the most difficult
    in American education. Premature ideas of
    independence, too little repressed by parents,
    beget a spirit of insubordination, which is the
    great obstacle to science with us, and a
    principal cause of its decay since the
    revolution. I look to it with dismay in our
    institution, as a breaker ahead, which I am far
    from being confident we shall be able to
    weather.
  • Letter to Thomas Cooper (1822).

5
How to Use the New Model Code
6
How to Use the New Model Code, 31 JCUL 1
  • It is a Model, a research tool.
  • Electronically searchable.
  • It has three distinct sections
  • Narrative Introduction History/Sources (pp.
    1-17)
  • The Model Code itself (pp. 18-63)
  • A Model Hearing Script (pp. 64-77)

7
Working With Your Lawyer
  • Bad result often flows from your lawyer learning
    about the case on the walk to the courthouse.
  • Get your lawyer to observe a hearing.
  • Builds his/her confidence for judicial
    conferences
  • Can improve process by observation
  • Ask the attorney who will defend you to take part
    in the periodic revision process. There are many
    legal alternatives your attorney can suggest.
    This will help to assure that the choices are
    ones your attorney can defend as well as possible
    and give you the most flexibility.

8
The Audit Process
  • Plan for a regular Conduct Code review.
  • Take care in selecting the revision author.Some
    of the worst code problems stem from it having
    been written by one who is out of the loop.
  • Counsel should be involved but be clear you a not
    creating a law school moot court or junior legal
    system, but something based upon educational
    values that can be run smoothly by non lawyers.

9
The Audit Process
  • Learn your campus history (what works despite
    all odds!).
  • Keep a file of a problem case and problematic
    provisions.
  • Documents problems under the old Code using
    specific cases to identify obstacles to correct
    outcomes.
  • Review statistics of types of cases for
    consistency and other clues.

10
The Audit Process Who Participates?
  • Advisor, Hearing Board Chair, Board Members are
    key resources
  • Campus politics/history shape committee
    membership
  • Involve many constituencies for INPUT, not as
    members Educational moment.
  • Be cautious about using law faculty or
    consultants who do not understand core value of
    student affairs

11
Basic Concepts of the New Model Code
12
Student Discipline Procedure v. Criminal
Procedure
  • Most Important Point The criminal law is NOT a
    helpful or controlling model for how a college
    deals with students who violate college rules.
  • Who says so? Well give you three citations
    there are more in the Model.
  • Highly recommend General Order, 45 FRD 133, 142
    (W.D. Mo. 1968) (en banc). See Model fn. 19.
  • School regulations are not to be measured by the
    standards which prevail for criminal law and for
    criminal procedure. Text at fn. 3. Esteban v.
    Central Mo. State Coll., 415 F.2d 1077 (8th Cir.
    1968) (Blackmun, J.).

13
Student Discipline Procedure v. Criminal Procedure
  • Student disciplinary proceedings are not
    criminal in nature as they only regulate the
    relationship between the student and the
    university, and have no bearing on a students
    legal rights or obligations under state or
    federal criminal laws. United States v. Miami
    Univ., 91 F.Supp.2d 1132, 1157 (S.D. Ohio 2000)
    Model fn. 20.

14
Constitutional Due Process v. Institutional Due
Process
  • Constitutional Due Process Minimal, even at
    state schools. Goss and Dixon Some kind of
    notice, some kind of hearing. Fn. 29.
  • Institutional Due Process We must do what we
    said wed do. So write your conduct code
    carefully dont use vague words like fairness
    or due process. Fn. 34.

15
The Golden Rule
  • Treat all students with equal care, concern,
    honor and dignity. (p. 15).
  • Honored status as students is what drives our
    treatment.
  • Examples appeal, counseling, attend hearing,
    hear outcomes, advisors.

Dr. Dennis C. Golden, President, Fontbonne
University
16
What is the Purpose of Your Code?
  • What IS a student code? It is the way a college
    defines its behavioral standards for students to
    be part of our community. Contrast criminal
    law retribution, punishment civil law
    monetary compensation.

17
What is the Purpose of Your Code?
  • It is ok to expect superior ethical and moral
    standards from our students. Fn 20 Standards
    so established on campus may requiresuperior
    ethical and moral behavior. (Gen Order)
    Courts will reach the right results if they do
    not allow themselves to be distracted by
    analogies from criminal law or administrative law
    or elsewhere. (Charles Alan Wright).

18
Use Plain English, Not Legalese
  • Responsible or in violation v. Guilty
  • Board members v. Prosecutors
  • Accused student v. Defendant
  • No violation found v. Innocent
  • Information v. Evidence
  • See fn. 50.

19
Key Points of Student Discipline Practice and
Procedure in the New Model Code
20
Pointers within the Model Code
  • Define student, pp. 18-19
  • Who determines what happened (student conduct
    board, pp. 20-21)
  • Who sets sanctions (student affairs professional,
    pp. 21-22)
  • To what conduct does the code apply, e.g., off
    campus (pp. 24-26) and after discovered

21
Pointers in the Model Code
  • What are the rules? (Keep them modern e.g.
    Disorderly conduct p. 31).
  • How does the process work? (pp. 38-54). If
    resolution short of a hearing does not occur, how
    does a hearing work? (pp. 40-54). Review 4 (a-j)
    at pp. 40-44.
  • Advisors, including attorneys (if allowed), to
    behave as Potted Plants (pp. 41-43).

22
Dealing With Students Attorneys
  • Role as advisor same as other advisors.
  • Right to counsel Gabrilowitz v. Newman. See
    fns. 126-129.
  • Jones v. Northern Illinois Univ., 1996 WL 19453
    (N.D. Ill. Jan. 2, 1996) and Osteen v. Henley, 13
    F.2d 221 (7th Cir. 1993).

23
Rules of Evidence?
  • Formal rules of process, procedure, and/or
    technical rules of evidence, such as are applied
    in criminal or civil court, are not used in
    Student Code proceedings. (Model Code, p. 44).
  • Supreme Court of Massachusetts It is not the
    business of lawyers and judges to tell
    universities what statements they may consider
    and what statements they must reject. (See fn.
    133).

24
Sexual Conduct Case Pointers
  • The fearful witness (pp. 50-54).
  • Student Impact Statements (not victim impact
    statements, See fns. 153, 219, 220).
  • Treat students who claim they are victims of
    other students with same dignity as those accused
    of violating rules. (e.g., pp. 23, 56).

25
Solving a FERPA Puzzle
  • LeRoy Rooker at the Univ. of Vermont.
  • Sources of The Problem filing systems for
    most matters involving no victim student
    embarrassment in telling sexual assault victim
    that sanction was lenient and maybe some
    criminal law confusion.

26
Solving a FERPA Puzzle
  • Places solved in the Model Code p. 23 17 p.
    56 (para 3-b) (printers error had this as para
    2-b), 58. See fn. 233. 
  • "Key question Ask to whom does this record
    "relate"?  Model urges you to consider that
    records about students claiming to be victims do,
    in law and logic, "relate" to them.

27
Disclosure of Hearing Outcomes
  • FERPA was amended in 1990 by the Clery Act to
    allow colleges universities to inform the
    alleged victim of a crime of violence of the
    outcome of the student disciplinary proceeding
    against the alleged perpetrator. (99.31) The
    amendments to the Student Right-to-Know and
    Campus Security Act in 1992 require colleges and
    universities to inform the victim of an alleged
    sexual assault of the final outcome of the
    disciplinary proceeding against the alleged
    perpetrator.

28
Disclosure of Hearing Outcomes
  • FERPA was further amended in 1998 to allow the
    release of the final results of a disciplinary
    proceedings to the public in certain limited
    circumstances
  • The student has been accused of a violation of
    the code which meets the definition of a crime of
    violence or non-forcible sexual offense.
  • The accused student is found responsible as a
    result of a student disciplinary proceeding of
    those violations.

29
Crime of Violence
Rather than relying on the definition of a crime
of violence at 18 U.S.C. 16, the Department of
Education has provided an all inclusive list of
crimes of violence
  • Arson
  • Assault offenses
  • Burglary
  • Robbery
  • Kidnapping/abduction
  • Forcible and nonforcible sex offenses
  • Criminal homicidemanslaughter by negligence
  • Criminal homicidemurder and nonnegligent
    manslaughter
  • Destruction, damage, and vandalism of property
    (99.39)

30
Using the New Model Hearing Script
31
A Description of the Model Hearing Script
  • We are free to adopt a system that reflects the
    nature of our academic community, that does not
    victimize students when they take part, and that
    is NOT modeled after court systems. (pp. 64-77).

32
The Style of Your Discipline Board Hearing
(See Model, pp. 64-77)
  • Old Model A Junior Court of Law, maybe even
    with students wearing mock robes and pretending
    to be trial lawyers.
  • New Model An educational meeting, forum provided
    by school to determine if rules were violated
    and, if so, the sanction. Like any educational
    meeting informal. Lawyer-like histrionics are
    discouraged.

33
The Model Hearing Script for your consideration
Review pp. 40-44.
  • No need for presenters or prosecutor. Avoids
    the risk of unbalanced skills and issue of
    furnishing same skilled presenter for all
    students and gives control to board.
  • The process is controlled by and questioning is
    lead by the student conduct board members.
  • Pointer No sidesall are our students (not
    ours and theirs). No cross-examination as
    lawyers think of it.
  • Youre not running a trial practice seminar!
    Compare faculty committee.

34
Credibility
  • No opinion required.  But please consider
    saying  We believed student x rather than
    student y.  See fn.  236.
  • One person's word is enough!  Just ask Judge
    Lancaster!  See fn.  187.

35
Conclusion and Final Comments
36
Key Point Use your Educational Judgment and
Common Sense
  • Courts give deference to Educational Judgment.
    See fn. 16.
  • If a suggestion is contrary to your common sense,
    it is probably a bad choice.
  • Choose options because they are educationally
    valuable be wary of any claim something is
    Legally Required.

37
Appeal and Remand
  • Limit Levels of Appeals (Zero v. 2, 3)
  • Limit Scope of Appeals (Model pp. 60-62).
  • inappropriate sanction
  • did not follow process
  • lack of substantial information
  • new information
  • Possible outcomes are specifically listed and
    discussed Remand, increase or decrease
    sanctions, etc. (Model, p. 62 at fn. 191.)

38
Appeal and Remand
  • Educate ReviewersA frequent error is to act as
    NEW finders of fact (wrong cannot judge
    credibility). Another error Hear only one side.
    Contrast trial de novo.
  • Instead, on appeal, credit credibility
    determinations by board, judge sufficiency of
    evidence on that basis.
  • Written opinion by Board (credibility).
    Remember Brandeis lesson...

39
New Cases Reaffirm Long Standing Principles
  • Ruane v. Shippensburg Univ., 871 A.2d 859 (Pa.
    Cmwlth. 2005) (state institution).
  • Gomes v. University of Maine, 365 F.Supp. 2d 6,
    (D.Me. 2005) (granting summary judgment)
    (Woodcock, J.).
  • Sexual Assault resource www.calcasa.org.
  • Excellent student conduct training  Donald D.
    Gehring Campus Judicial Affairs Training
    Institute, each June.  http//asja.tamu.edu   

40
Mr. Jefferson and the End of the Story
  • The imposition of student discipline
    determined the well-disposed among them to frown
    upon everything of the kind hereafter, and the
    ill-disposed return to order from fear, if not
    from better motives. A perfect subordination has
    succeeded, entire respect towards the professors,
    and industry, order, and quiet the most
    exemplary, has prevailed ever since. Every one
    is sensible of the strength which the institution
    has derived from what appeared at first to
    threaten its foundation. We have no further fear
    of any thing of the kind from the present set,
    but as at the next term their numbers will be
    more than doubled by the accession of an
    additional band, as unbroken as these were, we
    mean to be prepared. (fn 59).
  • Letter to Ellen W. Coolidge

41
A Model Student Conduct Code for the 21st Century
  • Edward N. Stoner II
  • 232 Buttonwood Lane
  • Tavernier, FL 33070
  • enstoner_at_adelphia.net
  • 412.519.8844
  • Dr. John Wesley Lowery
  • Assistant Professor of Higher Education and
    Student Affairs
  • University of South Carolina
  • Wardlaw College, Room 318
  • Columbia, SC 29208
  • 803-777-4158 office
  • 803-777-3090 fax
  • jlowery_at_gwm.sc.edu
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