Attorneys in Subcommittee Meetings: Frequently Asked Questions
The following information is provided in an attempt to clarify information in the University of Illinois at Urbana-Champaign Disciplinary Procedures. Please be advised that the Disciplinary Procedures will be the controlling document and any apparent conflicting information will defer to those procedures and not the FAQs.
I am representing a student facing disciplinary charges with the University. How do I establish my representation with the University?
Students are expected to speak for themselves in all University disciplinary proceedings. While a student facing criminal charges for the same behaviors being addressed by the University are entitled to the presence of an attorney in our disciplinary hearings, the role of the attorney is limited. Attorneys are not permitted to actively participate in the process in any way. During the hearing, you may consult with the student quietly in a whisper or exchange written notes to assist the student. The Office for Student Conflict Resolution will correspond and communicate directly with the student involved and not to third parties. We will gladly answer general questions about the process, but will communicate about the specifics of the incident only with the student.
My client was not on campus when this happened. Why is the University even involved?
The jurisdiction of the Student Code is applied based on an individual's relationship with the university rather than the geographic location of the offense. The University has high expectations of students when they are on and off campus to be productive members of the community.
My client is charged with a crime off-campus for the same offense. Can the hearing for the University be delayed until after the criminal trial?
No. The discipline process at the University of Illinois at Urbana-Champaign is not attempting to determine if a student violated the law. Instead, the University is attempting to determine if a student's behavior was in violation of our University regulations and standards. The goals of the criminal justice system and the University's student discipline processes are substantially different. The University will not delay the discipline of students to accommodate the criminal process. Delays may only be granted when it is established to the satisfaction of the Executive Director of the Senate Committee on Student Discipline that a delay is in the interest of the University.
Isn't this student disciplinary process double jeopardy for someone who is also facing criminal charges?
"Double jeopardy" is a concept that applies solely to criminal proceedings. Criminal proceedings do not in any way offer exemptions from civil or administrative proceedings.
What will happen if my client refuses to participate in this process?
The student discipline process will continue to move forward regardless of your client's participation in it. The hearing board will invite the accused student, the complainant, and other witnesses to the hearing to gather as much information as possible and make a decision based on the information provided. Your client is encouraged to fully participate in the process. Failure to do so will not be grounds for an appeal later.
Can he/she just withdraw to avoid the hearing?
Students may withdraw within the established University procedures. While the Office for Student Conflict Resolution will not permanently deny your client's ability to withdraw from classes with disciplinary charges pending, the investigation will continue and a hearing will occur to resolve the matter. Rare exceptions may be made if an accused student is incarcerated, hospitalized, or otherwise unavailable to participate in the process.
Is my client granted any immunity with the prosecutor's office if he/she chooses to participate in the student discipline process?
No. All student discipline records are subject to lawful subpoenas. This includes tape recordings, written statements, and personal recollections. However, The University has established a procedure to compel testimony which may preclude the use of incriminating statements in a criminal proceeding. This process is based on the Garrity v. New Jersey decision and is available upon request for your review.
Why isn't my client given the same due process protections as he or she would receive in the criminal process?
The courts recognize and support the differing goals and interests of higher education communities from those of the criminal justice process. Basic expectations of University disciplinary proceedings have been well established and are met and exceeded by the University of Illinois at Urbana-Champaign.
What is the standard of proof in the student discipline process?
All decisions of the University discipline process will be made based on a preponderance of the information presented, or a "more likely than not" standard.
Who serves on the Subcommittees on Student Conduct?
The Subcommittees on Student Conduct members are appointed by the Senate Committee on Student Discipline. Members are either full-time students or faculty members at the University. Our procedures require that 5 members serve on each hearing committee and that at least one member is a student and at least one member is a faculty member. Generally, the committees will be between 5 and 9 members. All members are trained for this role by the Office for Student Conflict Resolution. The Executive Director of the Senate Committee on Student Discipline retains the authority to make emergency appointments to the subcommittee as needed.
Can my client appeal the decision and sanctions of the subcommittee?
Yes. Students are permitted to appeal the decision of the hearing committee to the Senate Committee on Student Discipline within five business days of the date of the decision letter. The appeal must be based on one of the four criteria for appeal outlined in the Student Code. The appeal is submitted in writing and must come directly from the student, meaning no one may write an appeal on the student's behalf. The decision of the Senate Committee is final.
I have a very busy schedule and cannot attend the hearing time the University has established. How can the hearing be rescheduled?
The University will be attempting to schedule a hearing that is convenient for the respondent, the alleged victim, their advisors, witnesses, and the subcommittee members who will hear the information and make a decision. With so many people involved, it is not always possible for all schedules to coincide. In order to resolve complaints in a timely way, attorneys will not be directly consulted about scheduling the hearing. However, we will make reasonable adjustments to the schedule while communicating directly with the student. If you are unavailable for the scheduled hearing time, your client is welcome to choose another advisor.
What motivation do I have as an attorney to comply with the University's rules and procedures?
As an attorney for the student, you have the responsibility to cooperate with the student discipline process and abide by all of the expectations of the Illinois State Bar Association with respect to administrative processes. Specifically, the Illinois Rules of Professional Conduct state that, "...in a legislative, executive, administrative, municipal or other nonadjudicative proceeding...(t)he advocate's duties are instead defined by the rules of the tribunal." (1999 Rules) This indicates that attorneys are to abide by all rules of University disciplinary proceedings. Any attorney violating these standards will be reported to the State Bar Association.
Are there resources available for me to learn more about the law as it relates to campus disciplinary proceedings?
We recommend the following resources for attorneys:
- The Law of Higher Education (3rd ed.) by William A. Kaplin and Barbara A. Lee, published by Jossey-Bass Publications, (1995).
- The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? by Robert D. Bickel and Peter F. Lake, published by Carolina Academic Press, (1999).
- "Navigating Past the "Spirit of Insubordination": A Twenty-First Century Model Student Conduct Code with a Model Hearing Script," by Edward N. Stoner II and John W. Lowery, published by the Journal of College and University Law, Volume 31, Number 1, (2004).
In addition, a review of the following significant cases is also useful:
- Dixon v. Alabama State Board of Education (1961, 5th Circuit)
- Esteban v. Central Missouri State College (1969, 8th Circuit)
- Soglin v. Kauffman (1969, 7th Circuit)
- Paine v. Board of Regents of the University of Texas System (1973, 5th Circuit)
- Goss v. Lopez (1975, U.S. Supreme Court)
- Krasnow v. Virginia Polytechnic Institute (1977, 4th Circuit)
- Gabrilowitz v. Newman (1978, 5th Circuit)
- Osteen v. Henley (1993, 7th Circuit)
- Garrity v. New Jersey, 385 U.S. 493, 87 Sup. Ct. 616, 1967.
"School regulations are not to be measured by the standards which prevail for criminal law and criminal procedure."
Justice Harry A. Blackmun in Esteban v. Central Missouri State College, 415 F.2d 1077, 1088-89 (8th Cir. 1969).
"...The attempted analogy of student discipline to criminal proceedings against juveniles and adults is not sound. The nature and proceedings of the (campus) disciplinary process...should not be required to conform to federal processes of criminal law, which are far from perfect, and designed for circumstances and ends unrelated to the academic community. By a judicial mandate to impose on the academic community and student discipline the intricate, time-consuming, sophisticated procedures, rules, and safeguards of criminal law would frustrate the teaching process and render the institutional control impotent ... [emphasis added]"
44 F.R.D. (142) (W.D. Mo.)
General Order on Judicial Standards of Procedures and Substance of Student Discipline in Tax-Supported Institutions of Education
This document was adapted from "Disciplinary Guide for Attorneys" prepared by the Community Rights and Responsibilities Office at Illinois State University.
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