What University Students Need to Know About Your Rights During a Student Conduct Hearing

July 9, 2021 Don Pumphrey, Jr. College, College Student Disciplinary Hearing, Criminal Defense Social Share

A Student Conduct Hearing is implemented by Florida universities and established by the school’s president as a means of disciplining students who have violated that particular school’s Code of Conduct. This Code of Conduct will outline rules that students attending the university are expecting to abide by, and some include on-campus and off-campus violations alike. The Code should also outline what a student’s rights are during proceedings against them. For an overview of a Student Code of Conduct and possible penalties for violation, please visit our blog post here.

Overview of Student Code of Conduct Violation Procedures

Since the hearing procedure is established by the school’s president, students are not afforded the same due process and procedural rights as criminal defendants facing charges in courts of law and provided for by the Florida Administrative Procedure Act.[1] Instead, pursuant to F.A.C.R. 6C-60105(1), the university’s president will “establish university rules that ensure fairness and due process in student disciplinary proceedings and guarantee the academic integrity of the university.”[2] When the interests or discipline of a student are determined by the student’s university, typical due process provisions of the Florida Administrative Procedure Act do not apply.[3] This does not mean due process is lost entirely during student conduct hearings. It means that these due process requirements will apply differently, according to what that particular university outlines as “due process guarantees.”[4]

The student conduct hearing process steps include:

1. Charging

The student is charged and given a written notice of the Student Code of Conduct charges that they have allegedly violated and the facts underlying the alleged violation.[5] These charges will originate from a written statement filed by the complaining witness or a police report.[6] The written notice must provide “sufficient detail to prepare a defense,” much like an information filed in a criminal case and must include where the information was sourced from.

2. Information Session

In the written notice described above, the student is given the option of attending an information session during which the student will be instructed on the Student Code of Conduct hearing process, their rights during the process, and the forum in which the hearing will be heard.[7] Additionally, during this session, the student is informed as to what rule(s) they have allegedly violated, and the student has the opportunity to view any reports or evidence available at the time.[8] Other evidence obtained at a later date can be viewed any time before the student’s hearing.[9]

3. A Hearing

In some cases, the student can choose the forum with which their case will be heard. This usually consists of the student choosing between a formal or informal hearing. However, a formal hearing is required in any case where there exists a disputed question of fact or in any case where the student is charged with a violation serious enough to warrant expulsion or separation from the university.[10] If an informal hearing is elected or available, the student will be able to mediate the violations with an administrative officer directly.[11] However, a formal hearing mimics the criminal trial process, and typically includes the following steps:

1. The presentation of formal charges against the accused student.
2. An opening statement made by the university.
3. An opening statement made by the accused student.
4. The presentation of evidence and witnesses by the university.
5. The questioning of those witnesses by the hearing body.
6. The questioning of those witnesses by the accused student.
7. The presentation of evidence and witnesses by the accused student.
8. The questioning of those witnesses by the hearing body and university.
9. A closing statement made by the university.
10. A closing statement made by the accused student.

The standard used during these hearings is the “reasonable person” standard, and the evidentiary standard is the “preponderance of the evidence.” This means that the evidence must show that it is more probable than not that the violation charged has occurred.[12]

4. A Decision

After the hearing, the hearing body will issue a recommended decision to either the dean of students or the director of student rights and responsibilities, and the charged student will have the right to appeal their decision.[13] If an appeal occurs, an appellate officer will make a determination based only on the summary of the lower level hearing.[14] The outcome of the appellate officer’s decision will be reviewed to evaluate whether a full appeal process is necessary, but only a clear violation of a student’s due process rights, which prejudiced the student during, or new evidence, new information, or lack of evidence, will be sufficient grounds for appeal.[15]

The Student’s Rights During These Hearings

The United States Supreme Court has outlined several factors that courts must consider in assessing the amount of due process rights that should be afforded to student during hearings.[16] The factors[17] include:

1. The severity of the violation and possible sanctions;
2. The danger of error and the safeguards of additional procedures; and
3. The burden on the public or government if additional procedures were required.

These factors are considered by state and federal courts when reviewing an alleged due process violation during a university’s student code of conduct hearings. However, the United States Supreme Court still recognizes that the standard of due process rights in university proceedings is markedly weaker than the regular due process rights guaranteed by the Due Process Clause of the 14^th Amendment to the United States Constitution.[18]

While the Student Conduct Code usually provides for a fair hearing process, there are several limitations in place, specifically in regard to the accused’s access to an advisor or counsel. During the hearing, an advisor can accompany the accused student, witnesses, or the complaining witness.[19] But, the advisor cannot speak on behalf of the accused student or witness that they represent and can only speak to the student briefly in a way that won’t disrupt the hearing process. Additionally, the university may revoke this right to counsel.[20] As an example, the Florida State University’s Student Conduct Code states in pertinent part that:

“The term “advisor” means any one person chosen by the charged student, complainant, or any witness to assist throughout the student conduct process, unless service in this capacity would unreasonably conflict with the fair administration of the student conduct process as determined by the [d]irector (or designee) of the Office of Student Rights and Responsibilities.”[21]

Essentially, even though the university offers some form of due process rights, the only time a violation can occur is when the university’s hearing body violates its own rules within the university bylaws.[22] In most student conduct hearings, there is not a right to confrontation of witnesses, and it is not a due process violation for the accused student to have a complete inability to cross-examine or confront their accuser.[23]

Tallahassee College Student Defense Lawyer

As you can see above, Student Code of Conduct hearings do not adequately protect students and their rights. That is why it is incredibly important to retain an experienced attorney knowledgeable in university proceedings during the information, hearing, and appeals processes. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have a wealth of experience representing and assisting university students in handling their alleged violations. If you or a loved one has been accused of violating a university’s Code of Conduct, call (850) 681-7777 to speak with a Tallahassee student attorney today or send an online message today to discuss your options during an open and free consultation with an attorney in our team.

This article was written by Gabi D’Esposito

 

 

 

 

 

 

 

 

[1] Morfit v. Univ. of S. Fla., 794 So. 2d 655, 656 (Fla. 2d DCA 2001).

[2] F.A.C.R. 6C-60105(1)

[3] Morfit, 794 So. 2d at 656.

[4] See, e.g, Fla. State Univ. Student Conduct Code 6C2R-3.004, pp. 18-19. Florida State University’s Process is typical of most across the country and will be used as the example in this article.

[5] Id. at 11.

[6] Id.

[7] Id. at 12.

[8] Id.

[9] Id. at 23.

[10] Id. at 14.

[11] Id.

[12] Id. at 24.

[13] Id. at 21.

[14] Id. at 23

[15] Id. at 22-23.

[16] Ingraham v. Wright, 430 U.S. 651 (1977); Mathews v. Eldridge, 424 U.S. 319 (1976); Goss v. Lopez, 419 U.S. 565 (1975).

[17] Id.

[18] Goss, 419 U.S. at 583.

[19] Id. at 16.

[20] Id.  at 3.

[21] Id.

[22] Armesto v. Weidner, 615 So. 2d 707, 709 (Fla. 3d DCA 1992).

[23] Fla. State Univ. Student Conduct Code 6C2R-3.004, pp. 16.

 

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