Colleges' student-disciplinary codes received rough treatment in the news media during the last year, with many stories questioning or second-guessing officials' efforts to deal with student misconduct. Student-affairs officials began the new academic year this fall as they always do, informing students about how they are expected to behave and training residence-hall advisers and members of disciplinary boards about ways to insure safe living and learning environments for students. But it is clear that all of us who are involved in student discipline must work harder than we have in the past to educate the broader public – and particularly the news media – about what we are trying to accomplish.
A few examples will explain why. After a male student at Virginia Polytechnic Institute and State University was accused of violence against a female student during the last academic year, the news media raised questions, often based upon incorrect assumptions and erroneous information, about how colleges deal with allegations of sexual violence between students. Two feature articles in The New York Times last spring displayed considerable outrage over how student-disciplinary systems operate, implying that they operate erratically or shield students from punishment for conduct that. if committed off campus, could result in jail terms for the perpetrators.
Media coverage often seems to suggest that colleges should give tip their efforts to handle students' misbehavior and rely instead upon outside police and local district attorneys to handle allegations of misconduct so that students are treated "just like" other citizens. We need to make clearer to the public why this approach cannot possibly provide the environment that students need.
Nowhere are the difficulties of explaining colleges' disciplinary practices to the public-and the likelihood of sensationalized media coverage-more apparent than in cases of sexual violence between students. Every residential college has rules against such behavior and, like many other college rules (such as those concerning stealing or the misuse of alcohol), the conduct prohibited by college rules also is barred by criminal law. Several news stories charged during the past year that colleges tried to hush up incidents of sexual violence by substituting internal student-disciplinary proceeding s for action in the civil or criminal courts. These accusations are entirely misguided because colleges' disciplinary systems are not intended to be a substitute for the courts. They are, instead, the method by which a college enforces its own standards of behavior, which often are higher than those required by criminal law. Moreover, no college can dictate a prosecutor's decision about whether to pursue a criminal case.
Nevertheless, unfair media charges make it clear that student-affairs personnel must educate the public, as well as their campuses, about several issues regarding allegations of sexual violence.
First, such an allegation receives immediate attention from college officials. The response may include personal counseling for all students involved as well as referral of the matter to college disciplinary officials. Students also have the option of seeking redress by pursuing a criminal complaint or a civil charge for damages: these two avenues of redress are not controlled by the college.
Incidents of sexual violence can cause enormous pain. Several factors often converge to make it difficult for honest fact finders to determine exactly what happened: Alcohol may have been involved; there may be no witnesses other than the two students involved; and the incident sometimes has not been reported promptly. While these factors may make it difficult to treat each student fairly, colleges and universities cannot shirk their responsibility to try.
The public, as well as everyone on campus, must be helped to understand that leaving conduct that may violate both criminal law and college standards solely in the hands of the local police would guarantee a horrible result: The environment on campus would be no different from that on the streets. Moreover, after administrators have spent years trying to assure students that complaints about serious matters such as sexual violence will be dealt with promptly and fairly, it is simply not appropriate to consider doing nothing except calling the police and waiting for them to act.
Furthermore, the public and the media should realize that the counseling that campus officials provide to victims cannot really be considered adequate unless officials explain that prosecutors will rarely undertake an alleged "date rape" case unless the victim can show evidence of physical abuse such as bruises or can produce witnesses who can corroborate critical facts. This reflects the reality that prosecutors must have enough evidence in criminal cases to prove guilt "beyond a reasonable doubt."
Campus officials also must discuss with the alleged victim the heavy toll that a criminal case may take on the accuser. Unfortunately, our criminal-law system still often exposes a rape victim to a protracted, painful, and public ordeal. To say, as some media reports have, that a frank discussion of this problem unreasonably "discourages" victims from pressing criminal charges, or reflects an attempt to "hush up" an incident, is to ignore the best interests of the victim and to misunderstand the nature of counseling. The victim needs to be told of the alternatives available, and to weigh their respective costs and benefits, to make an informed decision about what to do.
Moreover, if students believe that campus officials will force victims of sexual violence to report the incidents to law-enforcement authorities, many will be unwilling to report sexual assaults to anyone. This would have serious, adverse consequences for both alleged victims and the campus as a whole.
Some critics have charged that colleges and universities prefer to use their own disciplinary procedures so that offenders will receive only trivial punishments, even though they may deserve far harsher treatment under criminal law. Regrettably, there may have been cases in which a college or university pursued a self-serving course, minimizing adverse publicity at the expense of fairness for students. In the vast majority of cases, however, colleges are doing precisely what they should be doing. They are apprising the alleged victim of available alternatives and resources and approaching each case based on its particular facts, with an eye to the best interests of all of the students involved.
When the evidence warrants, campus disciplinary proceedings ordinarily should be initiated and brought to a reasonably prompt conclusion whether or not criminal proceedings are under way. But colleges are not law-enforcement institutions; their mission is education. After all, the harshest punishment they can hand out is expulsion from college, not a jail term. When they conduct disciplinary proceedings, they are not trying to imitate courts, with their threats of imprisonment or possible awards of monetary damages. Instead, they are trying to promote an environment conducive to learning by showing those who misbehave and students generally – exactly what kind of behavior is expected of them. Thus, a college has a strong interest in disciplining those who disrupt the campus community, whether or not the same conduct has been or could be punished under criminal law.
Some critics complain that colleges and universities lack defined or enforceable disciplinary procedures, but campus proceedings do not have to follow the same rigid procedures that are used in criminal law. Most colleges, however, have gone to great lengths in recent years to spell out their disciplinary processes and to see that they are followed routinely.
When both the accuser and the accused are students, colleges generally try to provide each party with fair and conscientious counseling and, if the facts warrant. a formal hearing. The student who is accused of violating college rules is entitled to know the charges and generally to have an opportunity to be heard. But the courts never have held that colleges must afford accused students the same rights that apply under criminal law: to be represented by an attorney or to conduct the kind of cross-examination that plays such a prominent (and dramatic) role in criminal prosecutions. And in most states, college disciplinary proceedings may be conducted with less publicity – sometimes confidentially – while all states require criminal trials to be Public. Disciplinary proceedings try to emphasize the educational nature of the student-discipline process.
College Proceedings often provide a better means of resolving accusations of sexual violence than do criminal procedures. Some student victims, knowing that the public trials often vilify victims of sexual violence, are relieved to be given the choice of having their complaints heard in a confidential disciplinary proceeding that respects the dignity of everyone involved.
Thus, critics are misguided when they charge that college disciplinary systems provide students with "sanctuary" from the criminal law. The opposite is true. Students who misbehave are subject not only to the criminal- and civil-justice systems but also to the possibility of being disciplined or expelled from college. A case at St. John's University in New York a few years ago, in which students acquitted in criminal court of rape charges nonetheless were found in violation of the college's rules and expelled, illustrate the point. Rather than retreat from the challenge of dealing with student misbehavior, as some critics urge, colleges must continue to work hard to communicate to the public the complex, but vital, message about the role that student-disciplinary procedures play in academe. If they do not, we may face further misguided attacks on our efforts to enforce student-conduct rules.
Edward N. Stoner II is an attorney in the Pittsburgh office of Reed Smith Shaw & McClay and the author of "Harnessing the 'Spirit of Insubordination': A Model Student Disciplinary Code" (Journal of College and University Law, Fall 1990). Sheldon E. Steinbach is Vice-President and General Counsel of the American Council on Education.