Representing Students in the University Setting

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Representing Students in
the University Conduct
Process
Latavia S. Alexander, Esq.
December 2, 2015

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Let’s See What You Already Know

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Overview
 Historical Perspective
 North Carolina General Statute § 116-40.11 & UNC General
Administration Policy 700.4.1.1(R)
 Conduct Process
 Things to Remember
 Questions

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Foundational Case Law
 Dixon v. Alabama, 294 F. 2d 150 (5th Cir. 1961)
 Goss v. Lopez, 419 U.S. 565 (1975)
 General Order on Judicial Standards of Procedures and
Substance of Student Discipline in Tax-Supported Institutions
of Education, 45 F.R.D. 133 (W.D. Mo. 1968)
 Gorman v. University of Rhode Island, 837 F. 2d 7 (1st Cir.
1988)
 Schaer v. Brandeis University, 432 Mass. 474 (2000)
 Furey v. Temple University, 730 F. Supp. 2d 380 (E.D. Pa.
2010)

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Dixon v. Alabama
 Took place within the context of the Civil Rights Movement
 Six African-American students expelled from Alabama State
College. Students earlier had attempted to be seated at a
segregated lunch counter in a public building
 State authorities had ordered expulsion of the students
 Expulsion letters delivered by college president and did not
indicate any specific violations of school policy
 Students did not have opportunity to defend themselves or
know their alleged violations

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Dixon v. Alabama
 District Court found for the state, finding that no law or
regulation required notice and a hearing prior to expulsion
 State argued to the Court of Appeals:
 "Attendance at any college is on the basis of a mutual decision of
the student's parents and of the college. Attendance at a particular
college is voluntary and is different from attendance at a public
school where the pupil may be required to attend a particular school
which is located in the neighborhood or district in which the pupil's
family may live. Just as a student may choose to withdraw from a
particular college at any time for any personally-determined reason,
the college may also at any time decline to continue to accept
responsibility for the supervision and service to any student with
whom the relationship becomes unpleasant and difficult."

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Dixon v. Alabama
 In a 2-1 decision, 5th Circuit overturned the district court
 “Whenever a governmental body acts so as to injure an
individual, the Constitution requires that the act be consonant
with due process of law.”
 “One may not have a constitutional right to go to Bagdad, but
the Government may not prohibit one from going there unless
by means consonant with due process of law.”
 Required public institutions to require notice and a hearing prior
to serious disciplinary action.
 Severe blow to in loco parentis.

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UNC Wilmington vs. Sigma Alpha Epsilon Fraternity
HOW DID
WE GET
HERE ?

+ N.C. Gen Stat § 116-40.11
Disciplinary proceedings; right to counsel for
students and organizations
(a) Any student enrolled at a constituent institution who
is accused of a violation of the disciplinary or conduct
rules of the constituent institution shall have the right to
be represented, at the student's expense, by a licensed
attorney or non-attorney advocate who may
participate during any disciplinary procedure or other
procedure adopted and used by the constituent
institution regarding the alleged violation.
However, a student shall not have the right to be
represented by a licensed attorney or non-attorney
advocate in either of the following circumstances:

+ N.C. Gen Stat § 116-40.11
Exceptions:
(1) If the constituent institution has implemented a
"Student Honor Court" which is fully staffed by students to
address such violations.
(2) For any allegation of "academic dishonesty" as defined
by the constituent institution.

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N.C. Gen Stat § 116-40.11
 (b) Any student organization officially recognized by a
constituent institution that is accused of a violation of the
disciplinary or conduct rules of the constituent institution shall
have the right to be represented, at the organization's expense,
by a licensed attorney or non-attorney advocate who may
participate during any disciplinary procedure or other procedure
adopted and used by the constituent institution regarding the
alleged violation. However, a student organization shall not
have the right to be represented by a licensed attorney or
nonattorney advocate if the constituent institution has
implemented a "Student Honor Court" which is fully staffed by
students to address such violations.
 (c) Nothing in this section shall be construed to create a
right to be represented at a disciplinary proceeding at public
expense. (2013-413, s. 6(c).)

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UNC Policy Manual 700.4.1.1 [R]
 Regulation Applicable to Student Disciplinary or Conduct
Procedures: Right to an Attorney or Non-Attorney Advocate for
Students and Student Organizations
 Definitions
 Role of Advocates
 Notification of representation
 Training of Hearing boards
 Monitoring conduct procedures (monthly)

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Conduct Process
 Incident Report Received
 Student notified of allegation
 Student Conduct Conference
 Notification of Charges (if applicable)
 Resolution of Charges
 Hearing
 Plead Responsible
 Student is notified of outcome

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Student Notification
 Campus Appearance Ticket
 Staff member referral
 Email or phone call from the conduct office

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Student Conduct Conference
 Intake Form
 Explanation of students rights
 Explanation of process
 Formal/Informal discussion

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FERPA
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. §
1232g; 34 CFR Part 99) is a Federal law that protects the privacy of
student education records. The law applies to all schools that receive
funds under an applicable program of the U.S. Department of Education.
FERPA gives parents certain rights with respect to their children's education
records. These rights transfer to the student when he or she reaches the age of
18 or attends a school beyond the high school level. Students to whom the
rights have transferred are "eligible students.”
Generally without written consent a school cannot share a student’s record.
Exceptions

Representing Students in the University Setting

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Notification of Charges
 Formally charged with a violation of the Code
 Plead responsible or request a hearing
 Interim Sanction or Suspension

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Interim Measures
 Cases of special or extenuating circumstances:
 Pending Criminal Charges – typically felony charges
 Threatening or concerning behavior
 Sexual Misconduct
 Interim Suspension
 Student is suspended pending the outcome of a conduct hearing.
 Hearing is usually scheduled w/in 5-10 days of suspension
 Student is trespassed from University during suspension.
 Interim Sanction
 Student is administratively withdrawn pending outcome of criminal
case, or resolution of issue
 Treated like a suspension

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Conduct Hearing
 Student Judicial Board or University Committee on Student
Conduct
 Order of the hearing
 Witnesses and Advocates
 Deliberations
 Notification
 Appeals

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Appeals
 Non-suspension level – appeal to Director/Dean of Students
 Suspension level – Vice Chancellor/President of Student Affairs
 Expulsion level – Only Chancellor can implement
 Appeal to Board of Trustees

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Title IX Cases
 Sexual Misconduct
 Investigations conducted by Police, Title IX Coordinator, and
Conduct office
 Some are joint investigations depending on circumstances
 Conduct Hearings are heard by Faculty and Staff
 Both parties have right to advocate during process.
 Victim/Complainant is notified of final outcome and has appeal
rights

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Private Institutions
Handbook/Contract State Action

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Frequently Asked Questions
 I’ve been retained to represent a student in the conduct process,
how do I establish this with the University?
 My client has pending criminal charges, can we delay the conduct
process until they are resolved?
 The incident took place off campus, why is the school concerned?
 When will I receive Discovery?
 Who determines the final outcome?
 Can I present evidence during the hearing?
 How does a matter involving sexual assault get resolved?

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Things to Remember
 It is an Educational process
 It is NOT the courtroom
 Rules of Civil Procedure and Evidence Do Not Apply
 You are there as a advocate, but it is the student’s process
 It’s not meant to be an adversarial process
 You are there to advise the student, and cannot address others
directly
 Every school is different

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Contact Info
 North Carolina Central
University
 (919) 530-5287
 latavia.alexander@nccu.edu
 Resolexions
 (919) 695-3998
 latavia@resolexions.com
 www.resolexions.com

Representing Students in the University Setting

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Editor's Notes