Feb 15, 2009 Kangaroo tribunals and student discipline
In addition to criminal defense, I do student discipline defense. The two legal defense areas go well together, sometimes with student disciplinary matters relating to pending or potential criminal charges, and involving the fight for fair proceedings and fair treatment.
My zeal for fighting for criminal defendants and students goes as far back as the age of nine, when a fourth grade teacher — not even my teacher — stopped me in the hall, and asked: "Why were you playing last Wednesday at the apartments across the street?" I asked why she was accusing me. "Because someone reported a brown-haired boy in a blue coat doing that." I replied: "You have just described half the boys in the school. Have a nice day." Four years later, I talked a teacher into reversing a detention he ordered over my talking with a friend while he was trying to teach class.
Many students and their parents do not call a lawyer over a student discipline matter until the lawyer has less fighting power to offer than if s/he had been hired earlier. Perhaps the student has already spilled the beans to the school’s administrators or consented to a search. Perhaps the student has already had a disciplinary hearing (or waived a hearing for a more informal proceeding) and now wants help with an appeal (it is better to fight alongside an attorney from the beginning) or with suing the educational institution (that can be much more expensive than hiring an attorney at the front end). Some people wait so long to call an attorney for such work to try to save money. Others do not think of the option to hire an attorney for reasons beyond economics, or mistakenly feel that hiring an attorney will be used against them.
After I graduated from college in 1985, the stakes became higher overall in student disciplinary matters. In 1989, my undergraduate alma mater, Tufts led the draconian student disciplinary kangaroo court system by imposing probation on a student for distributing an offensive, abhorrent, and sophomoric t-shirt with fifteen alleged reasons why beer was better than women at Tufts.
Fortunately, Tufts’ disciplinary bungle later was reversed. However, not all students are as lucky in this atmosphere of zero tolerance and near-zero tolerance on so many student disciplinary matters, and with the Supreme Court giving a big green light for schools to clamp down on a wide range of disciplinary matters that even involve mere speech. We read about students who get hammered for innocently giving an Advil tablet to a student who needs the pain relief, for lampooning or criticizing teachers on the Internet, and for activities that students have no good reason to believe will be punished in the first place.
Students in private schools and private universities do not even have the protection of the Bill of Rights in disciplinary proceedings, because Constitutional rights only may be enforced against the government. The only recourse of private school students who have been wrongfully disciplined is to go to court under a breach of contract theory of recovery.
Most of the student disciplinary authorities and student discipline hearing panels I deal with tend to speak with respectful tones of voice, but then move forward with proceedings and disciplinary decisions that do not reflect such social graces. Some student disciplinary offices are called offices of judicial conduct or such similar names, but then insist that student discipline is different from court proceedings and the protections provided therefor, even though their offices are called offices of judicial conduct. One university before which I appeared even had its student hearing panel dressed in black judges’ robes, yet my client was only permitted to have me advise him at the hearing, but not for me to say a peep to anyone else. Why add insult to injury by wearing judges’ robes if the student’s lawyer is not permitted to talk to the judicially-robed folks who are permitted to ask the student questions about the alleged offense? Worse, some private educational institutions do not even permit a lawyer in the hearing room, and one told me that my client did not even automatically have a right periodically to come to the hallway to consult with me.
Caveat emptor: Before you choose a college, graduate school, or private high school, read the institution’s student discipline code to make sure whether you still want to attend. Also, I recommend googling "site:thefire.org [insert the name of the academic institution that interests you]." TheFire.org is the web address for the indispensable Foundation for Individual Rights in Education, which focuses on stopping the rampant runaway train of unfair student conduct codes and student discipline. The FIRE was started by politicial conservatives, and rounded itself out with ACLU types, among others. Among the services it provides are these free information guides geared particularly to students unable to hire and pay for a lawyer.
Scent of a Woman with Al Pacino came out eight years before I started doing student discipline defense. Scent of a Woman‘s scene of a student disciplinary hearing does not realistically depict the hearings I have experienced, with my hearings whiting out the names of other students accused of the same wrongdoings, and not being open to the public even if my client wanted to expose the kangaroo court hearings through making them public.
Certainly, each academic institutional has its own codes of conduct, and student disciplinary rules, procedures and practices. If you know of any institutions that you believe have fair student conduct rules, procedures and practices, please tell me, so that those institutions might serve as examples for reform to the remaining academic institutions. Jon Katz