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What Are the Most Common Procedural Errors Made by Schools in Their Disciplinary Processes?

When a school commits a procedural error during a disciplinary process on campus, that error can often provide grounds for an appeal, potentially overturning the original decision. That makes it very important to recognize procedural errors in any type of disciplinary proceeding, whether an alleged violation involves a serious offense such as sexual assault in violation of Title IX or issues of a different nature, such as false COVID vaccination cards or misuse of social media.

Attorneys are trained to spot procedural errors and to make the most of opportunities to produce a positive outcome as a result of the error. For that reason, it is often tremendously beneficial to work with a student defense attorney during a disciplinary proceeding or to at least consult an attorney to see if you have grounds for an appeal on campus or through the court system.

Procedural errors can differ substantially depending on the type of proceeding and the rules of the educational institution holding the disciplinary proceeding. However, there are some errors that are more common than others in all types of proceedings.

Failure to Provide Notice

State and federal laws, as well as the policies of most educational institutions, require a school to provide notice in a certain manner before taking action. Often, the notice needs to be written, and it needs to be provided within a certain timeframe.

Schools often fail to comply with laws or even their only policies when it comes to providing adequate notice. That notice could involve:

  • Informing students of their rights
  • Providing time to respond before a conference or hearing
  • Providing time to respond before a suspension or other disciplinary action takes effect

So, one of the first steps when looking for grounds to appeal a decision is to review all the notice requirements in effect and go through the timeline in detail to determine whether the school provided adequate notice. This is much more effective if you can analyze the requirements at the start of the process and gather evidence to demonstrate a lack of adequate notice at the time of the violation.

Failure to Comply with Other Procedural Requirements Established by Law or in School Policies

In addition to notice requirements, legal schemes, and school policy manuals often include many other specific requirements for disciplinary proceedings. Failure to comply with any one of these could provide grounds for an appeal or change in outcome.

For instance, Title IX regulations prohibit an educational institution from offering informal resolution as an option until a formal complaint has been filed in a Title IX case. If a school suggested informal resolution methods such as mediation when there is not yet a formal complaint, that would violate procedural requirements of Title IX. As another example, Section 3214 of the New York State statutes pertaining to education prohibits a school from suspending a student for more than five days without giving the student and parent a fair hearing at which the student has the right to legal representation. Suspending a student for six days without a hearing would violate that procedural rule.

Mistakes with Evidence

Schools commonly make procedural errors with issues involving evidence. They may fail to allow a student to introduce evidence in their own defense, or they may instruct decision-makers to ignore particular evidence. They may withhold evidence that should have been shared with both parties to a proceeding. 

Or they may fail to retain evidence, such as erasing a recorded interview so that there is no way to verify allegations that a respondent, complainant, or witness has changed their testimony. They may not allow a student to challenge the veracity of evidence. Many procedural errors involve mistakes with evidence.

Inconsistent Opportunities or Application of Rules

In situations such as a Title IX complaint involving allegations of sexual misconduct, where a school is being asked to balance the interests of a complaining student and a responding student, it is important for the institution to provide equal treatment to students. If they allow one student to introduce evidence to support their side of the story but do not allow the submission of evidence by the other student, the school violates the due process rights of that student. Similarly, if they allow one student to have a legal advisor present during a hearing or conference, that opportunity should be afforded to the other as well.

General Due Process Violations

Due process is a broad standard of fairness with standards that are applied differently in various situations. Although due process rights are not guaranteed in a school disciplinary proceeding in the same way that they would be in a criminal law proceeding, schools are generally expected to provide students and their families notice and an opportunity to be heard. Specific rules often flesh out what is required, such as with the notice requirements discussed above.

Other instances where a school commits a procedural violation by denying due process rights could include:

  • Failure to allow a student to consult an attorney before answering questions
  • Not applying a presumption of innocence for a respondent in a Title IX case
  • Using the wrong standard of proof to determine responsibility for alleged conduct
  • Refusal to allow a cross-examination of a witness in situations where cross-examination opportunity is required by law
  • Asking a complainant discriminatory questions about prior sexual history
  • Abuse of discretion
  • Failure to provide adequate training to those responsible for investigating or adjudicating a case
  • Bias on the part of an investigator or decisionmaker

An attorney experienced in spotting due process violations could help recognize these procedural errors, gather evidence to demonstrate the errors and prepare arguments to obtain a favorable outcome based on those errors.

Experienced Legal Guidance Can Help You Achieve Justice After Procedural Errors

Recognizing procedural errors is just the first step toward protecting your rights in a school disciplinary proceeding. You also need to bring the errors to the attention of the right authorities who can make a difference in the outcome of a case. This process will be different depending on the timing and the type of proceedings involved.

The dedicated student defense attorneys at Duffy Law understand how to recognize due process and other procedural errors and how to leverage mistakes to provide the potential for advantage. To protect your student’s rights and future opportunities, we invite you to contact us for a consultation to learn more about how we could assist with your case.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.