A Washington State Lawyer’s Opinion on Washington State Public Universities and their University Student Code and Standard of Conduct Violations. What does this all mean, how do you fight and what rights do you have in this process?
What does this all mean, how do you fight and what rights do you have in this process?
Overview
In any school or campus run by a Washington State government agency, the law provides due process https://en.wikipedia.org/wiki/Due_process rights that apply to all students and personnel. Whether a code or standard of conduct is actually violated and it needs to be mitigated or a false accusation of harassment, sexual assault, or another type of misconduct is leveled at a student or teacher, one does have the right to due process. The cold harsh reality is that Universities and Colleges in Washington State have the authority to investigate, judge and punish violations of their respective student codes and standards of conduct. That said, because such actions are being taken by a state agency, a fair process must be followed that is consistent with the concepts of constitutional due process. What does this mean? In general, this means you are supposed to have a fair hearing in front of a fair tribunal. Practically this means that an “informal” process is your hearing and the University member you speak with is the tribunal.
Be forewarned, these college administrative actions are serious and in our opinion, because we hear so many bad stories, we believe you must not assume the investigation will get it right, or people will view the situation sympathetically. You must make sure you get the right evidence or mitigating facts considered early on in the process and you must make sure your points are made and argued in a clear and organized manner. If you decide to use a lawyer, your lawyer needs to be familiar with arguing in an “uphill” environment to mitigate a wrong, or, where in our opinion, a presumption of credibility is extended to an accusation or accuser even if that presumption is not spoken. This is not a legal statement, rather it is simply an observation based on experience winning cases in today’s fearful political climate. The lawyers who practice civil and administrative law in our firm have an enormous amount of experience investigating and writing clear, organized, persuasive documents countering accusations or mitigating them in a variety of settings. Keep in mind, disciplinary sanctions and punishments in University Student Code and Standard of Conduct Violations can range from censure to dismissal (http://apps.leg.wa.gov/WAC/default.aspx?cite=478-120-040). Do not get caught unaware and miss an opportunity to be proactive and take charge of a situation early. Deciding to respond after the fact can lead to regret and failure.
In our opinion, as practicing lawyers, the Washington State administrative process in today’s political climate is not subject to a lot of checks and balances and so one must be careful to hire lawyers and firms who understand the politics of administrative law, understand how to craft facts and argument and know how to properly present a story with supporting evidence in an administrative setting while considering the “political” implications of doing so. This is an art. Alex Savojni and Robert Rhodes have argued 1000s of difficult hearings and we have a lot of thankful clients. Every case is different but winning starts with experience and effort.
University Student Code and Standard of Conduct – So what is going on?
Each University and College in Washington State has its own student regulations. This includes technical and community colleges. For example, here is the University of Washington’s student code of conduct (http://apps.leg.wa.gov/WAC/default.aspx?cite=478-120), here is the Washington State University ( WAC 504-26) Code of Conduct, here is the code of conduct for Renton Technical College WAC 495E-110, and here is the code of conduct for Shoreline Community College WAC 132G-120. We give you these so you can view them and see the common overall design of these kinds of regulations, this is not as a comprehensive list.
Why are schools able to do this?
The authority to do this was originally rooted in the federal laws surrounding Title IX of the Education Amendments of 1972 which prohibited certain conduct under any education program or activity receiving Federal financial assistance. Now, fifty years later, as with most administrative agencies, lawyers and laws, Washington State has expanded its regulations well beyond the original offenses, such as sexual harassment, stalking, or domestic violence. Now Washington State student codes violations include bullying, hazing, drug/alcohol violations, theft, vandalism, and cheating, amongst many others. The list is now so voluminous that in our opinion, it allows for almost any alleged bad conduct to be considered code violations that can be formally sanctioned or punished. A violation does not even have to take place on school property and a code’s definition of “student” is normally very broad. An individual involved in an investigation (alleged victim or perpetrator) does not necessarily even have to be a current student.
Once a complaint has been lodged against a student, students and families need to understand that an administrative process has already begun (see the next paragraph about the informal nature of the process as it often misleads people). Each school’s procedures may vary slightly but are generally similar to one another as they all are rooted in the Washington State Administrative Procedure Act. In short, the investigation, judging and result, be it dismissal or sanction, is a simplified version of what people traditionally think of as a court case except corners are cut to save time and money. They either are or resemble Brief Administrative Proceedings so do not let the informality of what is going on fool you. Whether this process is administered in a fair and reasonable manner is a completely different argument but this analogy helps most get the idea of what they are up against.
Informal Investigations – Do Not Be Mislead
Some Washington Universities and Colleges describe their initial hearings and investigations as “informal”. In our opinion as practicing lawyers, this label mistakenly gives an accused individual the incorrect impression about the seriousness of a situation. This is a grave mistake. This “informal” process lays the groundwork and facts for a final sanction that is not informal. Underestimating how unreasonable the result can be, or underestimating the need to put real effort and time into this “informal” process is common due to mistake or a tendency for people to want to ignore problems. The sanctions can range from no contact orders, written reprimand, restitution, disciplinary probation, loss of privileges, all the way to suspension, and even dismissal from the school. Many students and families want to fight seriously after a sanction has been entered but the administrative legal process is not friendly to adding facts after a ruling or decision is made. As such, it is important to immediately review the notice of investigation carefully as soon as you received it, follow the instructions carefully, note deadlines, collect witnesses and evidence and consider meeting with knowledgeable and experienced counsel to consider having your position and facts argued professionally the first time when it counts.
You have a right to have a lawyer | attorney present and to guide you from the very beginning, preferably one that is familiar with the administrative law environment. In our opinion, the moment you get the notice of investigation, you should contact an attorney because they can separate relevant and irrelevant evidence, focus arguments and points, organize a story into a compelling and effective argument, call and vet witnesses and help prepare a case that gives you the best chance at avoiding a preliminary ruling against you. Too often people attempt to solve the problem on their own not fully appreciating that in doing so, they manage to dig themselves into a deeper hole or miss opportunities that are unavailable later (mainly by not raising the right facts or presenting the right evidence initially because they assume others will see it or know it). It is a lot like fixing a sputtering car’s engine. You want to hire someone experienced at the beginning before you do irreparable harm to your engine by trying to fix it yourself and continuing to drive it. Our firm and its lawyers are the kind of people who like to fight and know how to fix complex legal engines. Regretfully, a lot of the tools that might otherwise be at out attorney’s disposal are lost if we are hired to appeal an initial loss. It is much harder to fix your case after the “engine” has blown up rather than when the initial sputtering sounds appeared. Do not fall into this category.
Final Thoughts
It is important to keep in mind there is the possibility of criminal or even civil liability with many of the accusations found in student code regulations. The reverse is also true, criminal accusations can lead to College or University Student Code or Standard of Conduct Violations. For example, a domestic violence incident between students could lead to a University Title IX investigation and expulsion, a domestic violence civil protection order from a court and a criminal charge of domestic violence assault. It is important to be aware of this because statements made in any of these investigations can be used against you in another forum. Getting guidance from a firm and lawyers who know multiple areas of law is wise.
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