If you have been retained by a Miami University student to provide assistance in a disciplinary matter, this guide will provide you with important information about the Code of Student Conduct and your role in the Miami disciplinary process. Please keep in mind that the University disciplinary system is very different from the civil or criminal judicial system. The University’s process is not adversarial; its purpose is to educate the student and contribute to his or her ethical growth.
The General Order on Judicial Standards of Procedures and Substance of Student Discipline in Tax Supported Institutions of Education (44F.R.D. (142) (W.D. Mo.)) states: “ … 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.”
Students are expected to act as their own advocates throughout the disciplinary process. Some students may choose to hire an attorney, but the attorney’s role is limited to consultation. He or she may be present during all proceedings as a support person, but cannot address Hearing Officers or Hearing Boards, speak in University Hearings, or question witnesses. Students do not have a Constitutional right to active legal representation in university disciplinary cases (see Hart v. Ferris State 557 F. Supp. 1379, 1386-88 (W.D. Mich, 1983).
The complaint party and the accused student are both entitled to the assistance of a Student Advocate, a member of the University community who can help the complainant or respondent navigate the disciplinary system. The Office of Ethics & Student Conflict Resolution maintains a list of advocates who have been trained in the disciplinary system.
Q: I have been asked to represent a student accused of violating the Student Code of Conduct. How do I establish this with the University?
A. The student must provide written authorization for you to have access to information about the case or discuss the case with a staff member.
The Office of Student Conduct will correspond at all times directly with the student, and not through any third party. You may receive copies of correspondence with the student’s authorization.
Q: What is the University's standard of proof?
A. The standard of proof in all cases is "by a preponderance of evidence."
Q: What is my role at your hearing?
A. The Code of Student Conduct permits attorneys to be present at all disciplinary meetings and hearings as a support person. A support person may not address Hearing Officers, Hearing Boards, speak in University Hearings, or question witnesses. You may advise your client, provided your interaction does not disrupt the process.
Q: When will I receive discovery?
A. There is no formal discovery under the University Code of Student Conduct. Both complaint parties and accused students are accorded reasonable access to the case file. If you and your client would like to review the case file, the student should call 513-529-1417 to make an appointment.
Q: When will I have the opportunity to depose witnesses?
A. There are no depositions under the Code of Student Conduct. Neither the complaint party nor the accused student (or their representatives) should approach the other party's witnesses prior to the hearing. All questioning of witnesses takes place during the proceeding.
Q: Can I get the hearing postponed?
A. The student may submit a written request for postponement. The Conduct Officer or Hearing Officer conducting the proceeding will determine whether the request will be granted.
The availability of a support person or attorney is not sufficient grounds to postpone a hearing.
Q: My client is charged with a crime off-campus. Can I get the proceedings delayed until the criminal matter is resolved?
A. The student may request a postponement, but pending criminal proceedings will not ordinarily serve as a basis to postpone a student disciplinary proceeding. The purpose of the University’s process is not to determine whether a student has violated the law; it is to determine whether a student violated the Code of Student Conduct.
Q: Why would the university act on allegations of sexual assault prior to the criminal proceeding?
A. The U.S. Department of Education Office of Civil Rights guidelines (see the 2011 "Dear Colleague" Letter) require a "prompt investigation" of allegations of sexual harassment—including sexual assault.
Q: Why isn’t the student afforded the same due process protections that would be provided in a criminal proceeding?
A. The courts have long recognized that the interests of the University community differ from those of the criminal justice process. A significant body of case law has been established that outlines basic expectations of fairness in any student disciplinary process. See below for a list of relevant publications and case law.
Q: What will happen if my client refuses to participate in the University’s disciplinary process?
A. The process will continue with or without the student’s involvement. The student may not use his or her refusal to participate as grounds for appeal.
Q: Is the hearing recorded? Can I get a transcript?
A. An audio recording is made of each University Hearing. The student can request a copy of the recording, but the Office of Ethics & Student Conflict Resolution does not provide transcripts.
Q: What are the student's rights of appeal?
A. The student (and the complaint party, in separable cases) can appeal the finding and/or the sanction to the University Appeals Board, providing that suspension or dismissal has been proposed or imposed or in any sexual assault case. Appeals are decided on the basis of the record and written submissions. An appeal does not entail a new hearing or conference or the taking of additional testimony. Appeals are considered only on the following grounds:
The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? by Robert Bickel and Peter Lake, published by Carolina Academic Press (1999)
The Law of Higher Education (3rd edition) by William Kaplin and Barbara Lee, Jossey–Bass Publications
Year 2000 Cumulative Supplement to the Law of Higher Education (3rd Edition) by William Kaplin and Barbara Lee, published by the National Association of College and University Attorneys (NACUA) (2000)
Dixon v. Alabama State Board of Education (1961, 5th Circuit)
Esteban v. Central Missouri State College (1969, 8th Circuit)
Ewing v. Regents of University of Michigan (1985, 6th Circuit)
Goss v. Lopez (1975, U.S. Supreme Court)
Hart v. Ferris State 557 F. Supp. 1379, 1386-88 (W.D. Mich, 1983)
Krasnow v. Virginia Polytechnic Institute (1977, 4th Circuit)
Osteen v. Henley (1993, 7th Circuit)
Paine v. Board of Regents of the University of Texas System (1973, 5th Circuit)
Soglin v. Kauffman (1969, 7th Circuit)
*This guide is modeled on Illinois State University’s “Disciplinary Guide for Attorneys.”*