How to write a successful appeal argument (university expulsion, IN)
July 13, 2016 6:15 AM   Subscribe

Family member was expelled from their university over a (BS) claim of misconduct. Is there a template to use or any recommendations on how to outline their statement to the panel?

Family member was expelled from their university over a (BS) claim of misconduct. They will need to speak in front of a panel and argue why the expulsion should be overturned. The person has a lawyer.. who hasn't provided much guidance on how to do this other than to write it out.. so do you have any template/format/outline you recommend?

Key info:
- The university started the investigation at the same time as the police. The police dropped/closed the case after interviewing my family member.
- The dean interviewed my family member various times, never allowing them to ask questions only answer questions.
- The dean alone made the decision to expel them without ever giving them a chance at a rebuttal.
- The appeal meeting is Monday.
- I am helping them prepare for opening arguments, what is the best format/template to use for this? Introduction of the person, testimony of the incident, review of proof of innocence, police closing case and end it there? Are we missing something? Should they also include how unjust the university investigation process was? Or is that irrelevant and not be mentioned?
- My family member believes the dean had a racial bias toward them for being Latin. Does this matter? They don't have hard proof of this other than interactions.
- They do not want to return to this school, and have begun the process of transferring, we just want to get this off of their record. Any advice with that?

I know you are not our lawyer and all that. But we do appreciate any guidance. Thank you
posted by heavyp08 to Law & Government (12 answers total)
What is he being accused of?
Did the police drop the case because they found that the offense didn't happen, or for some one reason?
posted by blueberry at 7:23 AM on July 13, 2016 [2 favorites]

Does your lawyer have any knowledge of or experience with this kind of thing?
posted by thelonius at 7:46 AM on July 13, 2016 [1 favorite]

You're pretty worked up over this, aren't you? That's understandable because you care so much for the family member. You might actually help the family member more, though, if you could throttle back your intensity.

It could be that your lawyer hasn't provided much guidance other than "to write it out" because that's about all the guidance there is. The fact that the police dept dropped/closed the case is probably because they found no evidence of actual crime. That's likely to be irrelevant to your family member's case with the university.

The fact that the dean interviewed your family member without letting the family member ask questions, that the dean alone made the decision, that the dean may have a racial bias are distractions.

It seems to me that your family member has two optons: 1) Argue that the conduct simply did not occur. (Based on what you've said, this sounds like a doubtful approach.) 2) Argue that the conduct occurred but that it does not fit the university's definition of "misconduct". For this approach, of course, you'll need to consult the university's rules.
posted by John Borrowman at 7:49 AM on July 13, 2016 [4 favorites]

The person has a lawyer.. who hasn't provided much guidance on how to do this other than to write it out..

If there is time, perhaps they should find a different or additional lawyer.

We really can't give you great advice here as you can't give us the details, but given that this got as far as the police, they should be careful what they put in writing, as it can be used against them if the police reopen the case for whatever reason or in a civil suit if there's other people involved.

As far as what will be persuasive, without more information, it's hard to say. If the school has their policies and procedures available publicly, if the Dean did violate any of them, that's the best bet. If there is genuinely discrimination going on, you might need to pursue a remedy down the line in court, as you'd need more than a week's time to gather information on whether there is demonstrable racial bias. Does the school have a resource group for minority students or a student group that might be able to help or be interested in what's going on?
posted by Candleman at 8:20 AM on July 13, 2016

There are employment lawyers who specialize in university discipline and can analyze the situation from other angles (unlawful discrimination, for example) as well for leverage and strategy. They can be found 1) practicing near large universities or 2) practicing in major metro areas at employment law firms, with a side focus on university stuff. It sounds like this person's lawyer is not one of those specialists.

Rule of thumb is, if you play by the government agency's rules, you will lose to the government agency. Get a lawyer who's represented professors. There are all sorts of ways to fight something like this without throwing yourself at the mercy of the entity which already decided to get rid of you.
posted by radicalawyer at 8:34 AM on July 13, 2016 [7 favorites]

John Borrowman is correct. If this is in fact "BS," either the misconduct never occurred or it does not meet the definition of misconduct. My experience has been more with academic misconduct like cheating and if the police were involved, I assume that your family member's alleged misconduct was more serious than that. However, in my experience most students accused of misconduct who say that they aren't responsible do not actually understand what the definition of misconduct is or say that they didn't understand. "I didn't know that copying those paragraphs from my friend was plagiarism. I thought plagiarism was only copying from an original source." "I didn't realize that this was not a collaborative assignment."

So make sure that all involved have read the misconduct policy and understand it. Don't play little games with it like "It never says that actions that take place on the course website count as 'on campus'" unless that is your only legal defense.

IANAL, but I work at a university.
posted by k8t at 9:33 AM on July 13, 2016

And to add, in my experience at three different American universities, the academic misconduct people are very through and detailed-oriented and try their hardest to err on the side of caution in these cases. The fact that it went to expulsion makes me skeptical about your family member's claims of BS, to be honest.
posted by k8t at 9:35 AM on July 13, 2016 [1 favorite]

Best answer: Source: university professor

I would strongly recommend that your family member limit his/her comments to his/her own experience: what he/she did. Stick to the facts and the evidence. Stick to the narrow scope of his/her own self.

Avoid declaring, proving, or commenting on his/her innocence, regardless of whether the police declined to pursue the case further (which is not proof of innocence). Definitely do not comment on what the Dean chose to ask, or not. Avoid at all costs whether family member should have been allowed to rebut his/her own expulsion at the time; this hearing is your chance. Family member's input on the fairness of the university's procedures cannot help them at this stage.

I would even more strongly recommend that your family member take the opportunity to express some type of increased personal understanding, or remorse.

Keep in mind that you may well not have full access to the story.
posted by Dashy at 11:26 AM on July 13, 2016 [6 favorites]

Your family member also needs to tell their lawyer if they had any previous misconduct charges. It may not be that they were expelled for this offense but rather had received previous warnings for other misconduct.
posted by k8t at 11:35 AM on July 13, 2016

Best answer: If you have an alibi or other affirmative evidence of innocence, that's pretty darn important and should be focused on.

I would never hesitate to offer the police closing the file as supporting innocence. Sure, in theory it might because the police decided they didn't care, but that usually happens earlier. If there's a file opened and an investigator has to roll, that file mainly gets closed because there was nothing to it.

Your family member needs his lawyers advice about whether how the dean went about things is useful. They probably aren't -- you would need for their BOTH to be a clear student rights procedural section in the disciplinary manual that was violated AND for there to be a notion that the appeals panel is supposed to reverse if those are violated but the finding was otherwise reasonable. (Many legal and quasi legal systems simply don't have an "exclusionary principal" like that. And even both of those things are true, many people take arguments over technicalities to be admissions of guilt (whether or not they should).

The lawyer also needs to prepare a clear argument around the propriety of the penalty. "Family Member asserts his innocence. But even if he is guilty, expulsion is an excessive penalty, because ..." The "because" is going to consist of either or both the fact that the offense doesn't fit the standards for expulsion in the policies (if that's the case) or that the panel should exercise its discretion not to expel because of (list of sympathetic factors here).

Your family member's desire to withdraw is an important tool here. A panel who is on the edge could easily order the expulsion reversed if it understands that your family member is leaving campus anyway -- basically enter lesser penalty and the fears about repeated violations, risk management, etc., that drive expulsions get handled anyway.
posted by MattD at 12:19 PM on July 13, 2016 [2 favorites]

Does your (friend's) university have a faculty association? My wife is the Executive Director of a FA and this is exactly the kind of work she does for her members. The rules at the University are byzantine, you need an expert to guide to you through.
posted by arcticwoman at 8:55 PM on July 13, 2016

The university started the investigation at the same time as the police. The police dropped/closed the case after interviewing my family member.

This certainly suggests that your family member did nothing illegal, but s/he may still have committed some sort of infraction of the university's code of conduct.... What kind of infraction is an important question, but how they adjudicated the issue may be even more important.

You say: The dean interviewed my family member various times, never allowing them to ask questions only answer questions.The dean alone made the decision to expel them without ever giving them a chance at a rebuttal.The appeal meeting is Monday.

I've been reading a lot about the Foundation for Individual Rights in Education (FIRE) recently, which was founded in 1999 by the lawyer Harvey Silverglate precisely to deal with these kinds of issues. They are a nonprofit that works with students and faculty over civil liberties issues at colleges and universities nation-wide. They have very strong feelings about how "cases" are ajudicated and how speech codes are enforced at universities.

When I googled FIRE and kangaroo court, I found this excerpt from a longer passage on their Website. It was originally written in 2000, and relates to sexual misconduct, but from what I'm understanding about universities today, the essence of it remains accurate.

There is virtually no place left in the United States where kangaroo courts and Star Chambers are the rule rather than the exception—except on college and university campuses,” notes FIRE’s President, University of Pennsylvania Professor Alan Charles Kors. “Due process, that is to say, fundamental fairness, is diminished in cases involving the most serious charges. In fact, in civilized societies, the more serious the charges, the greater the procedural safeguards become. Sadly, hundreds of colleges and universities have established special tribunals, with fewer protections and presumptions of innocence, to hear cases of sexual misconduct. Charges are treated like verdicts.”
Universities and colleges routinely deny students the right to legal counsel, the right to confront witnesses against them, the right to a public trial, the right to make a record of the proceedings in order to assure an adequate record for subsequent review, and the right to an impartial judge or jury. At public universities, such conduct can be challenged successfully because public institutions are all bound by the requirements of the Bill of Rights, including the obligation to accord due process of law.
I don't know the ramifications of expulsion, nor am I a lawyer. But if I were you I would call FIRE first thing tomorrow morning, and find out if they can help. Even if they can't, they are so well versed in the world of colleges and universities as it pertains to the law—which is it's own kind of specialty, one that your relative's current lawyer likely doesn't have—they may be able to informally advise on your relative's next steps, and how he should approach an appeal.
posted by Violet Blue at 12:45 AM on July 14, 2016 [2 favorites]

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