A Model Student Conduct Code for the 21st Century

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Presenting the Presenters. Ed Stoner, B.A. DePauw Univ.

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A Model Student Conduct Code for the 21st Century Edward N. Stoner II enstoner@adelphia.net John Wesley Lowery, Ph.D. jlowery@gwm.sc.edu

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Ed Stoner , B.A. DePauw Univ. '69, J.D. U.Va. '72; resigned accomplice, Reed Smith LLP; confessed to practice: PA, FL, US Sup Ct; previous President and Board Chair, NACUA; establishing individual from ASJA; Board part, CALCASA. Creator of '90 Model Code. John Lowery , B.A. U.Va. '90, M.Ed. U.So.Carolina '92, Ph.D. Knocking down some pins Green S.U. '00; previous ASJA Bd of Dir.; previous NASPA Bd of Dir; Assistant Professor of Higher Education and Student Affairs, University of South Carolina. Presenting the Presenters

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Thomas Jefferson and the Spirit of Insubordination Riots at the Charlottesville grounds brought about by liquor . . . bringing about strikes on educators and other "ungentlemanly" direct. Mr. Jefferson and two different pioneers inspected understudy lead and the state's dedication to such a University.

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"The article of train is the most troublesome in American instruction. Untimely thoughts of autonomy, too minimal quelled by guardians, conceive a soul of disobedience, which is the colossal impediment to science with us, and a foremost reason for its rot since the insurgency. I look to it with alarm in our foundation, as a breaker ahead, which I am a long way from being sure we might have the capacity to climate." — Letter to Thomas Cooper (1822). Mr. Jefferson and the Spirit of Insubordination

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How to Use the New Model Code

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How to Use the New Model Code, 31 JCUL 1 It is a "Model", an examination instrument. Electronically searchable. It has three unmistakable segments: Narrative Introduction: History/Sources (pp. 1-17) The Model Code itself (pp. 18-63) A Model Hearing Script (pp. 64-77)

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Working With Your Lawyer Bad outcome regularly spills out of your legal advisor "finding out about the case on the stroll to the courthouse." Get your legal advisor to watch a hearing. Manufactures his/her certainty for legal meetings Can enhance prepare by perception Ask the lawyer who will guard you to participate in the occasional modification handle. There are numerous "legitimate" options your lawyer can recommend. This will guarantee that the decisions are ones your lawyer can shield and additionally conceivable and give you the most adaptability.

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The Audit Process Plan for a consistent Conduct Code survey. Take mind in choosing the amendment "author."Some of the most noticeably bad code issues come from it having been composed by one who is "unaware of what's going on." Counsel ought to be included however be clear you a not making a graduate school debatable court or junior lawful framework, yet something based upon instructive qualities that can be run easily by non legal advisors.

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The Audit Process Learn your grounds history (what "works" in spite of all chances!). Keep a document of an issue case and tricky arrangements. Records issues under the old Code utilizing particular cases to distinguish hindrances to right results. Survey insights of sorts of cases for consistency and different pieces of information.

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The Audit Process: Who Participates? Guide, Hearing Board Chair, Board Members are key assets Campus governmental issues/history shape council participation Involve numerous supporters for INPUT, not as individuals: Educational minute. Be wary about utilizing law personnel or specialists who don't comprehend center estimation of understudy issues

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Basic Concepts of the New Model Code

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Student Discipline Procedure v. Criminal Procedure Most Important Point: The criminal law is NOT a supportive or controlling model for how a school manages understudies who disregard school rules. Who says as much? We'll give you three references: there are more in the Model. Very suggest: General Order, 45 FRD 133, 142 (W.D. Mo. 1968) (en banc). See Model fn. 19. "School directions are not to be measured by the gauges which win for criminal law and for criminal methodology." Text at fn. 3. Esteban v. Focal Mo. State Coll., 415 F.2d 1077 (eighth Cir. 1968) (Blackmun, J.).

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Student Discipline Procedure v. Criminal Procedure "[Student disciplinary proceedings] are not criminal in nature as they just control the relationship between the understudy and the college, and make little difference to an understudy's lawful rights or commitments under state or government criminal laws." United States v. Miami Univ., 91 F.Supp.2d 1132, 1157 (S.D. Ohio 2000); Model fn. 20.

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Constitutional Due Process v. Institutional Due Process Constitutional Due Process: Minimal, even at state schools. Goss and Dixon: Some sort of notice, some sort of hearing. Fn. 29. Institutional Due Process: We should do what we said we'd do. So compose your direct code painstakingly; don't utilize unclear words like "reasonableness" or "due process." Fn. 34.

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Treat all understudies with equivalent care, concern, respect and nobility. (p. 15). Regarded status as understudies is the thing that drives our treatment. Cases: advance, guiding, go to hearing, hear results, consultants… . The "Brilliant" Rule Dr. Dennis C. Brilliant, President, Fontbonne University

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What is the Purpose of Your Code? What IS an understudy code? It is the way a school characterizes its behavioral benchmarks for understudies to be a piece of our group. Differentiate: criminal law: retaliation, discipline; common law: money related remuneration.

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What is the Purpose of Your Code? It is alright to expect unrivaled moral and good principles from our understudies. Fn 20: "Measures so settled [on campus] may require… unrivaled moral and good conduct." (Gen Order) "Courts will achieve the correct outcomes in the event that they don't permit themselves to be diverted by analogies from criminal law or authoritative law or somewhere else… ." (Charles Alan Wright).

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Use Plain English, Not Legalese "Mindful" or "in infringement" v. "Blameworthy" "Board individuals" v. "Prosecutors" "Charged understudy" v. "Respondent" "No infringement" discovered v. "Pure" "Data" v. "Prove" See fn. 50.

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Key Points of Student Discipline Practice and Procedure in the New Model Code

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Pointers inside the Model Code Define understudy, pp. 18-19 Who figures out what happened (understudy lead board, pp. 20-21) Who sets sanctions (understudy issues proficient, pp. 21-22) To what direct does the code apply, e.g., "off grounds" (pp. 24-26) and "after found"

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Pointers in the Model Code What are the tenets? (Keep them present day; e.g. Sloppy direct p. 31). How does the procedure function? (pp. 38-54). On the off chance that determination shy of a hearing does not happen, how does a hearing work? (pp. 40-54). Audit 4 (a-j) at pp. 40-44. Counselors, including lawyers (if permitted), to act as Potted Plants (pp. 41-43).

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Dealing With Students' Attorneys Role as "guide"— same as different counsels. "Ideal to direct"— Gabrilowitz v. Newman . See fns. 126-129. Jones v. Northern Illinois Univ., 1996 WL 19453 (N.D. Sick. Jan. 2, 1996) and Osteen v. Henley , 13 F.2d 221 (seventh Cir. 1993).

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Rules of Evidence? "Formal standards of process, technique, as well as specialized tenets of confirmation, for example, are connected in criminal or common court, are not utilized as a part of Student Code procedures." (Model Code, p. 44). Incomparable Court of Massachusetts: "It is not the matter of attorneys and judges to tell colleges what articulations they may consider and what explanations they should dismiss." (See fn. 133).

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Sexual Conduct Case Pointers The dreadful witness (pp. 50-54). Understudy Impact Statements (not "casualty" affect articulations, See fns. 153, 219, 220). Treat understudies who guarantee they are casualties of different understudies with same respect as those blamed for damaging principles. (e.g., pp. 23, 56).

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Solving a FERPA Puzzle LeRoy Rooker at the Univ. of Vermont. Wellsprings of "The Problem": recording frameworks for most matters including no casualty understudy; humiliation in telling rape casualty that endorse was indulgent; and perhaps some criminal law disarray.

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Solving a FERPA Puzzle Places illuminated in the Model Code: p. 23 # 17; p. 56 (para 3-b) (printer's mistake had this as para 2-b), 58. See fn. 233.  "Key question: Ask: to whom does this record "relate"?  Model urges you to consider that records about understudies asserting to be casualties do, in law and rationale, "relate" to them.

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Disclosure of Hearing Outcomes FERPA was altered in 1990 by the Clery Act to permit schools & colleges to educate the claimed casualty of a "wrongdoing of savagery" of the result of the understudy disciplinary continuing against the affirmed culprit. (§99.31) The changes to the Student Right-to-Know and Campus Security Act in 1992 require schools and colleges to advise the casualty of a charged rape of the ultimate result of the disciplinary continuing against the claimed culprit.

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Disclosure of Hearing Outcomes FERPA was further changed in 1998 to permit the arrival of the last aftereffects of a disciplinary procedures to the general population in certain restricted conditions: The understudy has been blamed for an infringement of the code which meets the meaning of a wrongdoing of savagery or non-persuasive sexual offense. The blamed understudy is discovered mindful therefore of an understudy disciplinary continuing of those infringement.

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Arson Assault offenses Burglary Robbery Kidnapping/snatching Forcible and nonforcible sex offenses Criminal murder—murder by carelessness Criminal manslaughter—kill and nonnegligent homicide Destruction, harm, and vandalism of property (§99.39) Crime of Violence Rather than depending on the meaning of a "wrongdoing of brutality" at 18 U.S.C. 16, the Department of Education has given a comprehensive rundown of "wrongdoings of brutality"