A Model Student Conduct
Code for the 21st Century
Edward N. Stoner II
enstoner@adelphia.net
John Wesley Lowery, Ph.D.
jlowery@gwm.sc.edu
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.
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 state’s
commitment to such a University.
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).
How to Use the New
Model Code
How to Use the New Model Code,
31 JCUL 1
• It is a “Model”, a research tool.
• Electronically searchable.
• It has three distinct sections:
a.
b.
c.
Narrative Introduction: History/Sources (pp.
1-17)
The Model Code itself (pp. 18-63)
A Model Hearing Script (pp. 64-77)
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.
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.
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.
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
Basic Concepts of the
New Model Code
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? We’ll 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.).
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
student’s 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.
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 we’d do. So write your
conduct code carefully; don’t use vague
words like “fairness” or “due process.” Fn.
34.
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
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.
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
require…superior 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).
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.
Key Points of Student
Discipline Practice and
Procedure in the New Model
Code
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”
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).
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).
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).
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).
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.
Solving a FERPA Puzzle
• Places solved in the Model Code: p. 23 #
17; p. 56 (para 3-b) (printer’s 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.
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.
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:
1. 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.
2. The accused student is found responsible as a
result of a student disciplinary proceeding of
those violations.
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 homicide—
manslaughter by
negligence
• Criminal homicide—
murder and nonnegligent
manslaughter
• Destruction, damage, and
vandalism of property
(§99.39)
Using the New Model
Hearing Script
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).
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.
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 “sides”—all are our students (not “ours”
and “theirs”). No “cross-examination” as lawyers
think of it.
• You’re not running a trial practice seminar! Compare:
faculty committee.
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.
Conclusion and Final
Comments
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.
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.)
Appeal and Remand
• Educate Reviewers—A 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...
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
Mr. Jefferson and the End of the
Story
• “[The imposition of student discipline] determined the welldisposed 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
A Model Student Conduct Code
for the 21st Century
Edward N. Stoner II
232 Buttonwood Lane
Tavernier, FL 33070
enstoner@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@gwm.sc.edu