Effectively defending college students against charges of conduct and academic code violations requires an understanding of the multiple interests at play in a college student defense case. The most common mistake made by parents, students, and, ineffective college student defense attorneys is an overly narrow focus on only one of the interests. Chief among those competing interests is that of the school.
“In Loco Parentis” – In the Place of the Parent
Historically, schools subscribed to the doctrine of in loco parentis – a Latin term meaning: “in the place of the parent.” In English common-law, this concept promoted the role of schools and teachers to be as broad as that of the parents. Like parental authority, such power was effectively not reviewable. But as societal values changed so did legal standards and the modern United States notion of schools, including colleges and universities, bowed to the idea that students had individual rights that limited the scope of a school’s parental authority. But while legal standards have evolved, the mindset of college and university administrators has changed little. (See generally https://legal-dictionary.thefreedictionary.com/in+loco+parentis) (historical review of doctrine).
Today’s colleges and universities continue to act in a parental fashion but act also with an eye towards the legal rights that students may assert. In a recent panel I sat on, one former university administrator reflected that what was once unthinkable had now become commonplace – namely, threatened litigation over grading. With such awareness comes the weighing of interests beyond that of an individual student’s education, personal growth and safety, specifically, the good of the greater student community as enforced through potential litigation exposure, i.e., law suits.
This results in more Draconian standards that care little for the individual circumstances of students. A failure to punish a drug offense may create liability for the school if that student or others suffer harm from illegal drugs as the school may be accused of having been on notice of such problems yet done nothing. Similarly, as institutions battle each other over a shrinking pool of candidates and increasing costs, the stigma of academic dishonesty must be guarded against ever more vigilantly – again, at the expense of the circumstances of individual students.
Is the School’s Authority Unreviewable? (Can We Sue them?)
Parental authority is mostly unreviewable legally. Of course, there exist standards for neglect and abuse, but the vast majority of parental decisions cannot be reviewed in courts of law. So to with the vast majority of college and university decisions about student conduct, including academic conduct.
Worse still, a whole class of school decisions are governed by contract law rather than such safeguards of individual rights like the federal constitution. At non-state schools, a student and their parents effectively sign away many of their rights as part of the contract they enter in for the student’s education.
This does not mean schools cannot be sued. They can be and are sued frequently enough that the threat of litigation – as explained above – strongly influences the punishment of students. But it also means that litigation should be last line of defense for students and their families. Litigation is expensive and slow. Really it is far too slow to benefit all but the most egregious cases of college student defense.
Instead, students and their families need to focus on prevention and defense.
College Student Defense Prevention
Effective prevention of college student conduct code charges starts with understanding the conduct systems. That understanding is the foundation for the formulation and adoption of good habits that protect and enhance a student’s college and university experience.
Our firm offers clients a College Student Defense Prevention program which starts with educating families about how schools protect themselves through their conduct codes. This perspective is crucial to understanding how to avoid problems. The program then also explains the process of most college and university discipline procedures so that families understand what to expect if an accusation surfaces.
Most students and their families find orientations offered by schools unhelpful in this regard. Realistically, expecting students and their families to absorb and retain information about conduct violations and procedures from materials and sessions crammed into orientation days or the summer before school is simply unrealistic. Too often, students and their families do not focus upon a student defense problem until after a student is charged and, sometimes, not until after the student is sanctioned.
College Student Defense
Effective college student defense involves many skills that a lawyer needs to have mastered, including criminal defense. But even more basic is the need for the lawyer to understand the competing interests involved and first among them is understanding the history and continuing power of the doctrine of in loco parentis.
A skilled, experienced and learned college student defense attorney will be able to explain why the historical doctrine of in loco parentis might be more aptly named in loco horribilis. Ask them. It may be one of the most important questions you ever ask about your student’s education.
These materials have been prepared by Cohen Seglias for informational purposes only and are not intended and should not be construed as legal advice.