I had an absolute blast at DePauw University. Before graduating in 2003, I drank like a fish, partied like a rock star,[1] and made lifelong friends in the process. The best part? I got to enjoy the college experience in the good old days, before selfies and social media, so there’s very little evidence of my past shenanigans on the internet. I had more than a few run-ins with campus police, but the worst that ever came of it was a student disciplinary hearing. For my transgressions, I was required to write an essay explaining why the legal drinking age should be taken seriously, even by college students.[2]
Besides partying, my time in undergrad was focused on learning. Academics obviously played a big role in my life, but college also taught me a lot about myself, the people around me, and this spherical spaceship called Earth that keeps us spinning around the sun. With regard to self-knowledge, I’ve found that making mistakes is a big part of my learning process.[3] As that applies to life in general, I’ve concluded that not every mistake needs to be met with a punishment. Sometimes measured words work better than threats, and sometimes a drunk just needs a ride home. It’s 15 years later, and I can still feel a palpable sense of gratitude for every time an authority figure declined to make an example of young, irresponsible me.
My experiences in undergrad seem to stand in stark contrast to what my clients are coming up against in schools across Indiana. Have you been charged with public intoxication? You’re suspended for a semester. Have you been charged with OVWI? You’re suspended for an entire year. Did your allegedly improper conduct have anything to do with the school? Did it even occur on campus? It’s all the same to us. Whether the colleges and universities are describing things using intimidating language like “Title IX investigation,” or whether they’re sticking to bureaucratic banalities like “administrative hearing commission,” the outcome is likely to have consequences for the students involved.
Worst of all, these university proceedings move quickly and without regard for pending legal matters.[4] It’s not unheard of for a student to get an email on Monday instructing him or her to report to an investigator’s office on Wednesday. Despite the fact that 48 hours seems to be short notice by any metric, not all schools are eager to reschedule. If the university’s process does not fall under the expansive Title IX umbrella, some schools won’t even let you have a lawyer with you. Even if you are permitted to bring an attorney to your hearing, he or she is limited to an advisory role—your lawyer is not allowed to speak on the record. These policies tend to be laid out in student handbooks, alongside reassurances that administrative hearings are not legal proceedings and exist only for university purposes.
The first step down this not-so-long and winding road toward seemingly-inevitable suspension is for the accused student to meet with a university investigator. In my experience, the school official takes this opportunity to come across as friendly, inquisitive, and genuinely “committed to finding the truth” at the heart of the matter. Many students in this position don’t even reach out to their own parents, much less to an attorney. They assume the hearing isn’t a big deal. They are wrong.
Unfortunately, showing up alone to the university proceeding is not likely to be the student’s final mistake. I’ve read the reports that come out of these hearings, and almost every one of them represents a tragi-comedy of errors. Over-explaining things? Check. Admitting to violations of which no one’s accused you? Check. Making concessions when nothing is being offered in return? Check. All the while, the administrative investigator is telling the student that no information will leave “this room” unless the student requests a hearing. THIS IS NOT THE INVESTIGATOR’S PROMISE TO MAKE. Nothing that happens in a university investigation is protected from a valid subpoena, and the administrator could easily be called as a witness in a subsequent legal case. No matter what you’re told, this hearing is not “confidential.”
Once the investigator has interviewed the relevant witnesses, he or she writes up a summary of the case and settles on the official charges. The student then has the option of admitting or denying the allegations and is given an arbitrary deadline by which to comply. If the student chooses the former, he or she signs a statement of admission, and the administration is given carte-blanche with regard to the punishment (which ranges in possibility from no sanction to full expulsion).[5]
If the student opts for denial, a formal hearing is scheduled. The hearing typically takes place before an administrative panel that is charged with determining whether the alleged conduct occurred or not. The panel’s standard of proof is preponderance of the evidence,[6] which is much less stringent than beyond a reasonable doubt.
In my experience, these so-called formal hearings are better characterized as kangaroo courts with no meaningful standards or rules of evidence. In Title IX cases, the method by which the accused can question the accuser—by writing questions down on paper for the panel chair to read aloud—completely undermines the process of cross-examination. On top of that, the investigator who initiated the inquiry is present the entire time—including for deliberations and the finalization of sanctions.
From my perspective, the most unfortunate part of all this is how long people wait to invite me to the dance. The accused students (or their parents) don’t usually contact me until they’ve already reached the point where the university is asking them to admit or deny the allegations. By this time, much of the damage has already been done. The accused student has already appeared at a hearing and said things he or she probably shouldn’t have. He or she is likely facing a suspension[7] of at least one semester, and possibly even expulsion. When the investigation is complete, and all that’s left is for the school to determine a punishment, there’s very little that I can do to help.[8]
As an attorney, I understand how important it is for someone to seek professional counsel when his or her freedom or professional license is at stake. This is equally true for undergrad students. It’s crucial to consult with a lawyer before any type of administrative proceeding that could affect the course of your adult life. Don’t let your guard down just because a meeting is described as “non-adversarial.” You should speak with a lawyer prior to any meeting that has the potential to address alleged criminal acts or civil misconduct.
If you wait until the situation feels serious to begin treating it seriously, it will likely be too late. If you or someone you love has been ensnared in a university disciplinary proceeding, call the Marc Lopez Law Firm at 317-632-3642. It’s never too early to start preparing for your future.
[1] No, we didn’t have limousines or cocaine. This was the Greencastle approximation of partying like a rock star.
[2] Don’t worry, I disclosed this disciplinary incident on the character and fitness section of my Bar Exam application.
[3] Without some of my more formative failures, I might not be the successful criminal defense attorney you’ve come to know and love.
[4] The Department of Education recommends that schools do not stay disciplinary proceedings for a concurrent criminal case.
[5] For non-Title IX cases, some schools will provide a hint as to which way the administration’s leaning in terms of punishment. This, however, is not a universal practice.
[6] If the schools are serious about not viewing administrative hearings as legal proceedings, why do they insist on using legal jargon to describe them?
[7] The current trend is for schools to note suspensions on academic transcripts.
[8] Some schools specifically include forfeiture of tuition and room and board in the sanctions, and this is not even the worst of it—there are often still criminal charges pending as a result of the incident that gave rise to the allegations of student misconduct.