When Criminal and School Disciplinary Charges Are Pending at the Same Time

Students who engage in behavior that results in both criminal prosecutions and internal school disciplinary charges often find both criminal and disciplinary proceedings occurring simultaneously. Counsel for a student defendant will therefore typically have to balance the different schedules and procedures that the two systems, judicial and educational, follow. Right from the start, diligent lawyering means thinking about how the two proceedings will interact with each other, and trying to avoid or minimize the adverse consequences for the client of being subject to two sanction systems at once.

Students have no legal right to require their colleges or universities to postpone internal disciplinary proceedings while the criminal process runs its course. Wimmer v. Lehman, 705 F.2d 1402, 1407 (4th Cir. 1983); Hart v. Ferris State Coll., 557 F. Supp. 1379, 1384–85 (W.D. Mich. 1983); Grossner v. Trustees of Columbia Univ., 287 F. Supp. 535, 551 (S.D.N.Y. 1968). But a number of Massachusetts colleges and universities will defer disciplinary proceedings until criminal charges arising from the same incident have been completed, either on the request of the student or on the school’s own initiative. The reasons underlying this kind of policy are usually two-fold: concern that the campus investigation and disciplinary process may interfere with the criminal investigation and trial, and respect for the self-incrimination risks students face if simultaneously they must defend themselves in a campus proceeding while criminal charges are pending.

By way of example, the disciplinary policies at the Massachusetts Institute of Technology and Boston College provide that the institutions may defer internal disciplinary proceedings when a student also faces criminal charges. The University of Massachusetts, in contrast, only allows a student to defer a disciplinary hearing until he or she can obtain a lawyer and be advised about protecting his or her rights in the criminal proceedings.

If the school’s disciplinary proceeding is not deferred until the criminal charges are decided, the principal question the student defendant’s lawyer faces is whether he or she will be permitted to participate in the campus disciplinary hearing on the charges. The answer may be different, depending on whether the college or university is a state or private institution.

State Institutions

Federal court decisions controlling in Massachusetts require that a student defendant be permitted to have counsel present at a disciplinary proceeding when criminal charges arising out of the same incident are pending. Gabrilowitz v. Newman, 582 F.2d 100, 105–07 (1st Cir. 1978); McLaughlin v. Mass. Mar. Acad., 564 F. Supp. 809, 812 (D. Mass. 1983). The courts analyze the issue in terms of due process, and reason that, because there is a risk the student defendant may self-incriminate himself or herself for purposes of the later criminal proceeding, the presence of counsel will help guide the student’s decision if and when to speak. Gabrilowitz v. Newman,582 F.2d at 106. The role of counsel in campus disciplinary hearings is, however, strictly limited. The lawyer is not present to cross-examine the witnesses or plead for his or her client, but rather to safeguard the rights of the student defendant by advising him or her about the ramifications of questions he or she may or may not answer. Gabrilowitz v. Newman, 582 F.2d at 106.

When no criminal charges are pending or threatened that arise from the incident that is the subject of the disciplinary hearing, these due process concerns about self-incrimination are not present. As a result, the institution is not required in such cases to permit counsel for the student defendant to be present at the campus disciplinary hearing to protect the student’s rights. Gorman v. Univ. of R.I., 646 F. Supp. 799, 806 (D.R.I. 1986), rev’d on other grounds, 837 F.2d 7 (1st Cir. 1988); Protonotarios v. Duggan, 12 Mass. L. Rptr. 389, 390 (Middlesex Sup. Ct. 2000).

Private Institutions

Massachusetts courts have held generally that a student at a private college or university has no constitutional right to have a lawyer present at the student’s disciplinary hearing. Coveney v. President and Trustees of Coll. of the Holy Cross, 388 Mass. 16, 22 (1983); see also Schaer v. Brandeis Univ., 432 Mass. 474, 481–82 (2000). However, no Massachusetts case involving a private institution has expressly considered that question in a case where criminal charges were pending for the same incident that led to the disciplinary hearing. Counsel for a student defendant attending a private institution should consider making the same argument regarding the risk of self-incrimination that the courts have upheld for students at public institutions, because the risk of uncounseled self-incrimination is the same in either case. (However, Coveney distinguished Gabrilowitz on the ground that Holy Cross is a private rather than a state institution, not on the ground that the student was not facing criminal charges when he was subject to the campus disciplinary process. Coveney v. President and Trustees of Coll. of the Holy Cross, 388 Mass. at 22.)