One of the most difficult aspects of student development is student discipline. According to the American Heritage® Dictionary of the English Language, Fourth Edition, the word discipline has six definitions, including the following two.

• Training expected to produce a specific character or pattern of behavior, especially training that produces moral or mental improvement, and
  
• Punishment intended to correct or train.
  

In disciplinary procedures, a great deal is at stake from the personal development of the individual student to the safety and good order of the campus. This is the conundrum of student discipline – when are we teaching and when are we punishing? Even though we say, and perhaps we believe, that we are always teaching, in reality that is likely untrue. The College Disciplinary Administrator (CDA) must insure proper balance of the many facets of student discipline while considering the influence of state and federal legislation, court decisions, district policies and procedures, and the politics of the campus and the community.

TWENTY YEARS OF CHANGE

In 1986, I became the CDA at Orange Coast College, one of the largest colleges in California. Orange Coast is part of the Coast Community College District, which is comprised of three schools.

A review of my predecessors’ files uncovered letters of warning and reprimand and letters of suspension. A typical letter of suspension, sent after the student had met with the dean, stretched to a full paragraph in length.

In today’s more complex world, the letter might extend to two full pages in length. It would include a specific reference to the college district’s Student Code of Conduct and Disciplinary Procedures, a statement of charges, an opportunity for the student to review evidence in the matter, details of the disciplinary action planned, information about appeal opportunities, information about legal representation, information about resuming status as an active student, and more.

In the same 20 years, we have seen a growth in the volume of student discipline cases. Many reasons have been postulated for this.

• The increase in the cohort of young students who lack the maturity to function in college, lead to classroom disruption and faculty frustration.
  
• Changes in the mental-health system place more students with impulse control problems in the colleges.
  
• Increasing economic stresses on students and the colleges lead to high levels of frustration.
  
• The Internet and its implications affect academic integrity.
  
• Overcrowded colleges and students who do not have the tools to deal with increasingly diverse populations with differing values and styles create stressful interactions.
  

This article is presented in two parts. In this issue, we will consider the Federal Educational Rights and Privacy Act, due process and property rights, and students’ legal representation at disciplinary hearings. In an upcoming issue, we will consider mental health issues and impulse control, study abroad, retention of disciplinary records, tracking of disciplinary records, and related policies and procedures. Consideration of these will assist your college to provide the most effective programs of student discipline possible and insure that your college is well positioned in any litigation regarding student discipline.

THE FEDERAL EDUCATIONAL RIGHTS AND PRIVACY ACT
(FERPA)

On a number of occasions, colleagues from neighboring colleges have called to ask about a particular student. Perhaps the student is having disciplinary problems and has identified him- or herself as a former student from my college. Perhaps the student’s record includes transcripts. In any event, the student is behaving inappropriately and the colleague wants some background.

I can share information on a need-to-know basis with another college in my district. If the college is in another district, however, FERPA limits my comments. Take care not to violate this act, as the consequences to the college can be severe. Remember that the student has come to your school to get a fresh start.

A less-well-considered issue is electronic mail, which has become pervasive. How often do you receive or send information about specific students through the college e-mail system? Your MIS director says that all campus e-mail lies behind a firewall and is protected from external view. Perhaps that is true and the information is secure. But how often does a faculty member or administrator, working at home, send similar information? Does that lie behind the firewall? How many servers does the message pass through on its trip to your office? Is the student’s privacy protected?

It is unlikely that we will be able to keep people from communicating via e-mail and I do not advocate that, but the privacy issue should be addressed. One solution is easy to implement but it requires an extra step. First, ask that the e-mail message not include personally identifiable information such as name, student ID number, or social security number. Instead, ask people to use initials. The extra step is to have the sender leave a voice-mail with the student’s name and ID number. Then send a confirming paper memo to the sender. This keeps the personally identifiable information separate from the detail that must be kept private.

Recently, I implemented this procedure at a college in Southern California. After a few weeks of adjustment, the office staff in the Dean’s office embraced the approach, even making a game of creating appropriate code names for each student. For example, a student accused of plagiarizing a paper from the Internet became “Internet Author.” Care must be taken to use respectful identifiers as written communications ultimately may be shared with the student and others through the legal process. When we deal with student discipline, much of what we do may be unpleasant. This helped staff make an unpleasant task a little more bearable.

DUE PROCESS AND PROPERTY RIGHTS

Courts have generally allowed colleges to develop disciplinary procedures without interference as long as basic constitutional rights of students are respected. In particular, students must be afforded due process; they must not be subject to arbitrary disciplinary action. Furthermore, the more a student has to lose from disciplinary action, the greater the required due process. Due process may range from the college affording the student an opportunity to provide his or her perspective on an incident to allowing the student to appeal a disciplinary action, either formally or informally.

To insure due process, the college must protect the student, other affected campus members, and the college. Do this by having disciplinary decisions made by a person other than the accuser — a person who carefully follows all relevant procedures and applies them evenly.

For example, if a teacher reports that a student is disrupting her class, she should not be the person to withdraw that student. Rather, the CDA should complete an investigation to determine the facts of the case then take appropriate action. The administrator should interview the teacher and the student, and, possibly, some students selected at random from the class. With this body of evidence, the administrator can determine if the student is disruptive, the teacher has classroom management problems, or a combination exists. The administrator can take an appropriate action that may include a stern talking to the student, withdrawal from class, assistance to the instructor, or other action.

Sometimes this is not enough due process. The more a student has to risk in a disciplinary proceeding, the greater the need for due process oversight. In California, education is considered a property right.

A property right is involved when a student loses the opportunity to continue his or her education (long-term suspension or expulsion) or loses state- or federally funded financial aid. In these cases, it is essential that the student be permitted to appeal the CDA’s decision. This is the formal disciplinary appeal hearing. Procedures for such hearings must be carefully enumerated in the disciplinary procedures. Each college must decide the extent to which lesser disciplinary actions can be appealed beyond the CDA.

STUDENTS’ LEGAL REPRESENTATION
AT DISCIPLINARY HEARINGS

Students do not have an entitlement to legal representation at a disciplinary appeal hearing. However, it is essential that they be given a fair opportunity to prevail at hearing and that they be protected from incriminating themselves when there is a risk of criminal charges as an outgrowth of on-campus behavior. The question is how to insure that fairness without overburdening the college with legal fees.

One solution is to limit the use of attorneys to situations in which the student can create an incriminating record that might become part of criminal proceedings in a court of law. In all other cases, the student might have the right to bring a member of the campus community as an advisor. Neither the attorney nor the campus advisor should be permitted to address the hearing; rather they attend to advise the student.

Two caveats should be noted. First, while the student has no experience with a hearing, the college representative probably has had considerable experience and a thorough understanding of procedures to be used. Second, the student is likely to select an advisor who also has little experience in disciplinary hearings or be unable to find one at all. To insure fairness, the college might provide a list of trained staff members who can serve as appeal advisors. If your appeal process includes a rotating committee of people to hear appeals, the same people can be asked to rotate from hearing officers to advisors. If the student government organization provides a student ombudsman, he or she may also be trained to serve as an appeal advisor.

CONCLUDING REMARKS

Our goal is to help students be successful. Careful consideration of these issues and the ones I will address in the next issue will help colleges avoid the pitfalls that must be addressed to insure that we meet that goal.

Note:

Mr. Dimsdale is not an attorney. The material in this article and the accompanying files should not be construed as legal advice.