Colorado University Student Discipline Cases

University of Colorado and other college student discipline cases pose a grave threat to the investments students and their families place in their college educations.

Consider this, you are a student in a public university, college, or graduate school; you’ve likely spent thousands, if not tens of thousands, of dollars in pursuit of your education. The future happiness, income, and quality of life are contingent upon a college or graduate student’s personal and academic reputation.

If you are informed that you have been accused of committing an act that warrants a disciplinary hearing to determine whether you will receive a significant suspension or even expulsion you need to consult a lawyer experienced in this area – few lawyers are.

As a Colorado college student you have no idea what to expect in a university disciplinary hearing, by the same token – you are fully aware of the fact that your reputation and future rest upon the outcome of this hearing.

The questions you have about the upcoming hearing are many.

• How much time do I have to prepare for my hearing?
• What am I being accused of?
• What kind of evidence is there against me?
• Can I call a lawyer to represent or assist me at the hearing?
• What can I say on my own behalf – what shouldn’t I say?
• Will there be witnesses who will speak against me at the hearing?
• Who will decide whether I actually performed the alleged bad act?
• How much does the university have to prove to suspend or expel me?

These are just some of the legal questions are important to the individual student, the courts, and society at large.

University students may be well educated – literate and intelligent but they are “inexperienced” in understanding and applying even basic procedural rules that govern disciplinary hearings. That lack of experience, coupled with emotions such as fear and anger, creates an “inability to articulate their story and, therefore, students -without help – find it difficult to wage an adequate defense.

The impact of a criminal accusation can be particularly harmful to graduate students who have devoted significant time and energy pursuing their chosen profession. An attorney can – at a minimum – help young student understand how the accusation might impact the student’s education and also how to fight the charges. Students interested in the health care profession, education, the law, the military or law enforcement may be particular affected, including graduate students in the following colleges.

A student is always allowed to retain an attorney to act as an “advisor” during a college disciplinary hearing. An attorney can be an asset in achieving a positive outcome. An attorney experienced in this area can assist the student in preparing a witness list, preparing statements for those witnesses, and presenting other favorable evidence or evidence in mitigation on behalf of the Colorado college student.

An attorney can help the student prepare a written and oral statement and respond to questions at the hearing. Additionally, a Colorado criminal defense attorney can also help the student understand the rules and procedures used during the disciplinary hearings.

The Steinberg Colorado Criminal Defense Law Firm can help you navigate through the administrative maze of petitions, student judicial hearings, conduct probation, written statements, and possible defenses, explanations or mitigation. We will thoroughly prepare you to zealously fight to keep your academic standing. H. Michael will also go with you to the student disciplinary hearing.

You owe it to yourself to allow H. Michael to analyze your case and clarify both the university’s hearing process and the court system. He will explain your options and recommend the most favorable course of action. Contact us to discuss your unique circumstances and how to protect your academic future.

The right to due process arises under the Fourteenth Amendment of the United States Constitution.”The Fourteenth Amendment forbids the State[s] to deprive any person of life, liberty, or property without due process of law.” Essentially, procedural due process requires that the party who is subject to the potential deprivation of a life, liberty, or property interest be afforded a fair and meaningful opportunity to tell his or her side of the story before the State takes away that protected interest.

The courts decided that the full-scale procedural due process requirements characteristic of criminal or civil trials are unnecessary in serious university disciplinary settings? The reasons include the history of the educational setting, the historical view of the student, and the evolution of the importance of education within society and the eyes of the court. Thus the courts have held that due process in a university setting does not rise to the same level as the rights and protections that constitute due process in a civil or criminal trial – not even close.

A university, due in part to its unique history, is treated with greater deference than the State itself with respect to the protections the university must provide under the Fourteenth Amendment. The courts are impose minimal rules of due process because of the idea that universities should enjoy wide discretion in conducting and deciding university disciplinary hearings. This is because of the doctrine of in loco parentis. The Latin term in loco parentis literally means “to stand in the place of a parent.”

While the doctrine does not apply directly to the relationship of students and postsecondary institutions today, the great discretion the doctrine afforded universities in the past has certainly left an imprint on the courts of today. Historically, under the in loco parentis doctrine, colleges and universities were perceived to play a role similar to that of parents while the students played the role of children. A parent would certainly not be expected to give her child notice and a hearing before administering punishment in an ordinary parent-child relationship, and in loco parentis operated in roughly the same fashion when applied to post-secondary disciplinary settings.

Under the doctrine of in loco parentis clearly applied to universities, the university, like the parent, was fully responsible for “the physical and moral welfare and mental training of the pupils” and, as such, was not required to provide notice of hearing nor to employ “fair” procedures during the course of that hearing to administer punishment.

Based on all of the parent-like responsibilities that were once possessed by universities, the courts have been reluctant to interfere with the disciplinary procedures and decisions universities made with respect to their students.

The doctrine has permanently affected the way courts perceive the relationship of the student and the university today.

Universities are still provided great deference in deciding the fates of students at university disciplinary hearings. Universities possess remarkable discretion to decide what process is due at their disciplinary hearings. The protections of the Fourteenth Amendment in past university disciplinary hearings were often nonexistent due to their inapplicability in this setting and, even today, are often minimal at best.

Believe it or not the right to counsel has been found to be a nonessential element with respect to achieving a fundamentally fair university disciplinary hearing.

As stated above, the right to counsel is not deemed to be a procedural “right” essential to achieving due process in a university disciplinary hearing. In my opinion – the right to counsel, or perhaps the lack thereof, is the most troubling areas in determining whether a student has had a meaningful opportunity to tell her side of the story and defend against the accusations and leads to the Catch 22 when a student is charged in the University Conduct System with a serious criminal offense.

A student finds himself in a “Catch 22” when he is faced with a serious accusation from a university which carries the penalty of significant suspension or expulsion, and, at the same time, he is or likely will be facing a serious criminal charge arising out of the same series of events.

If the student speaks at the university disciplinary hearing without the advice of counsel, he puts himself in jeopardy of providing what may very well be incriminating statements that could be used against him in a pending criminal trial.

But if he preserves his right to silence and refuses to participate in or speak during the course of the university disciplinary hearing, he probably will not make a meaningful case and may well be suspended or expelled from the university after he fails to openly explain or defend herself.

In either case, without counsel, the student lacks the knowledge of an attorney who may be of assistance in protecting him against incriminating himself, and at the same time, affording him the opportunity to speak on his own behalf and present a meaningful defense at the university disciplinary hearing.

In Gabrilowitz v. Newman, Gabrilowitz, a student at the University of Rhode Island (URI), was notified by the local police department that he was facing a criminal charge of assault with intent to rape a fellow university student. Shortly thereafter, URI notified Gabrilowitz of its intention to charge him with assault with intent to rape and with an additional assault charge stemming from the same incident or series of events that led to his initial criminal charge.

The notice of the university disciplinary hearing also described the procedures and rules the university would employ in conducting the hearing. These rules and procedures explained, among other things, that Gabrilowitz could not be assisted by counsel nor even have counsel present at his university disciplinary hearing. Gabrilowitz sought an injunction barring URI from holding his disciplinary hearing until after his pending criminal case was resolved or until such time that he would be afforded counsel of his choice to assist him at the disciplinary hearing.

However, the Court also distinguished those cases which expressly found the right to counsel to be unnecessary in preserving a student’s right to due process from Gabrilowitz’s situation. The rule that was followed – no counsel was necessary to preserve a student’s due process rights – ignored the “specter of a pending criminal case hovering over the hearing.”

Ultimately, the implication of the Fifth Amendment, the possibility of a forced Hobson’s choice without his lawyer, and the severity of the pending criminal charge rendered an advising attorney necessary to the preservation of due process in Gabrilowitz’s university disciplinary hearing.

The Hobson’s Choice consists of remaining at the hearing and facing likely expulsion, or speaking without the advice of an attorney and compromising the right against self incrimination and jeopardizing the pending criminal trial.

Gabrilowitz faced imprisonment of up to twenty years if found guilty of the criminal rape charge he faced.

This decision–a frequently cited precedent– is especially useful to student conduct officers addressing the issues of legal representation and possible self-incrimination in student disciplinary cases when related criminal charges are pending.

Prevented student from having an advisor/lawyer in student conduct/disciplinary hearing.

The issue is not whether it is unconstitutional to force appellee to decide whether or not to testify in the disciplinary proceeding.

The issue is whether he is unconstitutionally deprived of due process of law because he is forced to make that choice, or other choices, without the benefit of a lawyer in the face of a pending criminal case arising from the same facts that triggered the disciplinary proceeding.

The Court held that because of the pending criminal case, the denial to appellee of the right to have a lawyer of his own choice consult with and advise him during the disciplinary hearing without participating further in such proceeding would deprive appellee of due process of law.

In this case, the student faced a criminal rape charge after local police investigated the incident in question. The student’s university charged him with sexual misconduct. The student alleged a violation of his procedural due process rights because he was not afforded an attorney during the

hearing, but at the same time, he did not allege that the absence of counsel infringed upon his Fifth Amendment right against self-incrimination.

Accordingly, the court found that without the implication of the Fifth Amendment, the university’s refusal to allow the assistance of an attorney did not violate the student’s due process rights in this hearing.

Once it becomes clear that the charge is serious, there are or likely will be pending criminal charges, and the assistance of an attorney is necessary to protect the Fifth Amendment rights of the student, a student must also explain the role that counsel is to play at the hearing. Because the assistance of counsel is not required to preserve a student’s due process rights in every university disciplinary hearing, the courts consider the role that counsel will play at the proceeding.

Counsel should attend the disciplinary hearing in a watchdog or assistance capacity for the purpose of protecting the implicated Fifth Amendment rights of the student.

In Donohue, the court held that “In view of the [self-incrimination] peril faced by the student, . . . a limited role of counsel [is] necessary, ‘to safeguard [the student’s] rights at the hearing..” BUT also held that the role of counsel was not “necessary in this case” because the student intended to use counsel “as a sword” to challenge the credibility of the witnesses that would be used against him. Counsel would have been necessary to achieve due process in the hearing only if the student used his attorney “as a shield to protect his Fifth Amendment rights.”

Donohue suggested that counsel is only necessary in a disciplinary hearing when counsel’s role is one in which he serves to protect the student from self-incrimination, and not when counsel is present to sway the decision of the hearing tribunal.

Although the courts have made great strides in the quest to treat university students like other adults who have certain constitutionally protected rights or interests, it still seems as though there are several issues that might make a student’s skin crawl in a university disciplinary hearing.

Despite the growing importance of education, the Constitution does not protect students against procedures that are “unwise,” “floor-level,” or “minimal.”

At present, the only protections that students must be afforded in every serious university disciplinary hearing are: notice, a hearing, a finding of guilt based only on substantial evidence, and written findings and record of the proceeding.

In Gorman v. University of Rhode Island, the Federal First Circuit held that if the accused

student had an opportunity to answer, explain, and defend himself, a fair trial could be had without adherence to an adversarial hearing. The court balanced Gorman’s interest in an education against the need to “promote and protect the primary function of institutions that exist to provide education and concluded that the undue judicialization of a disciplinary hearing could be counter-productive, and result in the improper allocation of limited resources.

Since Gorman had the opportunity to consult with attorneys before and after his hearings, and was permitted to have an assistant from the University community during his hearing, full representation rights would not have accorded him a fairer hearing. The court did not

require an ideal proceeding, only “an informal give-and-take between student and disciplinarian” with an opportunity for the student to explain his version of the facts. That is the Colorado rule.

A certain stigma occurs when a suspended or expelled student attempts to transfer to or temporarily attend another school, or apply to graduate school. Most college and graduate school applications require disclosure of serious disciplinary infractions. If the student is candid – his candor will result at most schools in a denial of the application. Thus, students who have been suspended or expelled may, in fact, be wholly deprived of the liberty to complete their undergraduate education at another school, to pursue later graduate study, or even their chosen careers.

Even probation, used as a punishment in many campus hearings for first offenses, often involves limiting a student’s participation in various campus activities, restricting a student’s access to certain university buildings, or requiring participation in some type of community service or education program. This is a deprivation of liberty, though of a different punitive order than suspension or expulsion. Probation can also give rise to deprivation of property, because some schools include payment of a fine, or reimbursement for an alleged victim’s medical and counseling expenses.

H. Michael Steinberg is a Colorado Attorney Experienced With University of Colorado Disciplinary Cases. Disciplinary Actions Involve A Complete and Thorough Understanding of the University of Colorado Code of Conduct.

University of Colorado Boulder students who are charged with violating the law very often also will be “charged” with a violation of University rules and face disciplinary sanctions from the University.

The outcome of a university disciplinary hearing might be suspension or dismissal that could result in long-term or permanent damage to a student’s honor or reputation. Common violations include drug and alcohol possession – use and arrests, DUI/DWAI, minor in possession of alcohol, criminal mischief, theft, assault, and sexual assault.

One commentator put it this way: Many university students have a particularly strong need for an actively participating counsel because they have just reached adulthood, and some of them face fear, anger, and the inability to articulate their story. The assertion that students are literate and educated and should be able to defend themselves is simply false.

Another said this: Students must be allowed legal advisors in every disciplinary proceeding involving serious misconduct because there is always the possibility of a concurrent or subsequent criminal trial. Often, alleged victims will await the results of the campus hearing before deciding whether to file criminal charges. Or, the alleged victim may decide years afterward to seek prosecution. Whatever the situation, it will usually be possible for the testimony of the accused student to be used against him or her in a subsequent criminal trial. The rights to counsel as advisor should attach, whether the threat of a criminal trial has been realized or not, because such a threat will continue to exist until the statute of limitations on the crime expires.

While administrative type hearings such as University Conduct disciplinary hearings need not be overly strict or unduly rigid in matters of procedure, the relaxed nature of the procedure is not a license to violate fundamental fairness. To insure the fairness of these hearings, due process requires, at a minimum, notice and an opportunity to be heard in a meaningful manner and due process must be provided to a student upon his or her removal from school.

In Colorado – the courts have held that in evaluating the inherent fairness of a hearing, the courts must consider the total effect of the entire procedure on the rights of the individual and an evaluation of due process includes an assessment of the risk of an erroneous deprivation of a protected interest through the procedures used. Rather than a narrow focus on particular factors, the courts must examine the totality of the procedures afforded and their effect on the fundamental fairness of the hearing on the individual. Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505 (Colo.App. 2002)

University of Colorado students are subject to the University’s Code of Conduct – violations may result in a hearing before the C.U. Office of Student Conduct, which is responsible for enforcing the Code.

who represents you or your son or daughter, must be not only familiar with the defense of the criminal charges in the Colorado criminal courts – but also with the procedures employed in the university disciplinary action that often parallels the criminal case.

H. Michael Steinberg has over 38 years of professional experience in this area of the criminal and college law.

A Link to The University of Colorado Code of Student Conduct.

Finally the University of Colorado provides this step by step guide to assist the student with the process – it is reprinted here.

For cases involving alleged violations of Sexual Misconduct (Student Conduct Code section F4a-c), Sexual Harassment (section F9a), or Protected Class Discrimination or Harassment (section F9b) the conduct process outlined in Appendix 1 of the Student Conduct Code applies, pursuant to University policy. When alleged violations of the charges governed by Appendix 1 are accompanied by other alleged violations of the Student Conduct Code, all of the charges may be processed together as outlined in Appendix 1. For more information, please see Appendix 1 of the Student Conduct Code. For all other cases refer to the process outlined below.

Reports come from a number of different sources, including the Boulder Police Department, the University of Colorado Police Department and Housing and Residence Life.

All conference notices are sent to the student’s official University of Colorado e-mail account. The conference notice outlines what provision of the Student Conduct Code the student allegedly violated, instructions on scheduling a conference, information on how to obtain a report if it came from an outside agency, and their rights and responsibilities in the conference.

The best way to schedule a conference is to contact the office at 303-492-5550.

The conference is a time for the student to respond to the alleged violations of the Student Conduct Code. The student will sign the case resolution preference form, which outlines the student’s rights and responsibilities and gives the student a chance to either accept or deny the alleged violations of the student conduct code. The student has the right to have an advisor present at the conference. In most cases, no matter if the student accepts or denies responsibility for violating the aforementioned code, the conduct officer will continue with the conference gathering the student’s recollection of the events from incident, witness statements, and any other relevant evidentiary information.

This may include contacting witnesses, police officers, business owners, and others who may have information on the incident.

The decision letter is mailed to the student.

Sanctions may include both active and inactive sanctions. Active sanctions include, but are not limited to alcohol and/or drug education classes, CU Restorative Justice, community service, and research/reflection papers. Inactive sanctions include, but are not limited to probation, suspension, and in extreme cases, expulsion.

Not all cases can be appealed. A case may only be appealed if the sanctions imposed included termination of residence hall contract, suspension or expulsion. The appeal must be submitted by the deadline specified in the decision letter and must comply with the other requirements of Section K of the Student Conduct code.

Unless the welfare of a person or the community is threatened, all of the sanctions imposed in a case that may be appealed will not go into effect until either the deadline for filing an appeal passes and no appeal is filed or, if a timely appeal is filed, the appeal is decided, whichever comes first. If a case is not appealable, the sanctions will go into effect immediately or as otherwise stated in the decision letter. For more details about the appeals process, see section K of the Student Conduct Code

It is the student’s responsibility to complete and provide proof of completion to our office by the due date prescribed in the decision letter.

Please call our law firm if you have questions about.

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 38 years (as of 2012). For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

If you have questions about Colorado University Student Discipline Cases in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and also to provide quality legal representation to those charged in Colorado adult and juvenile criminal matters.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters as regards Colorado University Student Discipline Cases.