Against the Odds: Winning University Disciplinary Hearings

When students dream about admission to college, they dream about making new friends, fascinating classes, and long-term professional success – they rarely, if ever, give much thought to the Code of Conduct – until they’re accused of violating it.

 

Are you a Student Accused of:

1. Committing a Crime;
2. Harassing or Abusing a Former Partner
3. Violating the School’s Code of Conduct; or
4. All of the Above?

 

Then, in addition to criminal prosecution, you may be the subject of an investigation and hearing before your school’s student or administrative boards.

 

There are over 100 universities and colleges in the Greater Boston area, and each publishes its own Code of Conduct. A Code of Conduct is a school’s policy setting forth student behavior prohibited by the school, often both on and off campus, the procedure for determining whether a violation has occurred, and listing remedies available to address violations.

 

Every student accused of misbehavior could face very serious consequences – suspension or expulsion, implementation of an abuse prevention order or harassment prevention order, or criminal prosecution and conviction. But an experienced defense attorney may be able to help.

 

Court Procedure by Kafka : the Collegiate Disciplinary Processes

 

Colleges probably do need some form of disciplinary process… but the process at any particular school may not include some or all of the safeguards offered by the courts to assure fairness, such as:

 

• The Right to Counsel
  • Criminal defendants have the right to be represented by an attorney – someone who has completed specialized education and training regarding the law, your rights, relevant rules and procedures and been admitted to practice law in that state
  • Students facing disciplinary boards may not have the right to have an attorney present during hearings. If an attorney is permitted, they may not be allowed to introduce or challenge evidence, cross examine witnesses, or even argue in the student’s favor.
    • For example, Tufts University does not allow attorneys to speak to its disciplinary hearing panels. Northeastern does not allow attorneys to attend the hearing… but an attorney may help the student prepare cross-examination of witnesses.
• Rules of Procedure
  • Criminal proceedings are administered in accordance with the Rules of Criminal Procedure. These rules were first published by a select team of practitioners – including judges, law professors, prosecutors, and defense attorneys – intent on assuring the process afforded all parties the opportunity for justice. These rules are routinely reviewed and updated to assure fairness.
  • Collegiate disciplinary board rules are published by… whoever the school hires. There is no guarantee those rules were drafted with the wisdom of any degree of experience.
• Rules of Evidence
  • Parties seeking to have evidence considered by criminal courts must adhere to the court’s Rules of Evidence. These rules ensure that evidence, such as hearsay, is reasonably reliable and relevant to the issues being considered.
  • University disciplinary boards do not utilize rules of evidence, meaning these boards may have no guidelines to establish which evidence it considers relevant.
• Rules of Professional Conduct
  • Attorneys and judges are expected to adhere to a set of published ethical rules called the Rules of Professional Conduct. These rules govern how they interact with their clients, opposing parties and attorneys, and the courts. A lawyer who breaks these rules could face investigation before the Board of Bar Overseers – a panel that investigates violations of the ethical rules and can suspend an attorney’s license to practice law.
  • University disciplinary boards may or may not be governed by any particular ethical rules.
• The Right to an Impartial Judiciary
  • Criminal defendants have the right to have their cases presided over by an impartial judge who has no particular interest in the outcome of the matter.
  • University disciplinary boards include members that have a personal stake in the outcome of the proceedings. A board member who makes an unpopular decision could easily face negative career consequences.
• The Authority of Judicial Opinions
  • Criminal defendants enjoy the benefit of published statutes that clearly define criminal conduct. Where parties disagree about the meaning of terms, they may reference thousands of published judicial decisions published over the course of generations with the intent to clarify the law. This process offers consistency – which leads to fairness.
  • University disciplinary boards do not publish previous decisions, meaning students are unable to compare themselves to similarly situated students and argue they deserve similar results.
• Right to Public Hearing
  • Criminal prosecutions are open to the public. Anyone – including members of the press - can walk into court on any day and see what’s happening. Hearings are recorded and those recordings are available to the public. When the Courts are unfair, the public may protest.
  • University disciplinary boards meet in secret. Recording may be prohibited. The press is not allowed. When the boards are unfair, parties have little recourse with the courts of public opinion – and without recordings, there may be no objective evidence of what happened during the hearing.
• The Burden of Proof
  • In order to convict a defendant of a criminal charge, a jury must unanimously determine the prosecution has proved the charges “beyond a reasonable doubt.” This is an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs. It is not enough for the prosecutor to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty.
  • University disciplinary boards require a lower standard of proof – often a “ preponderance of the evidence.” This means the board can find a student committed an offense if the evidence is ambiguous… as long as they can find that the accusation is “probably” true.

Universities may be permitted to develop their disciplinary procedures without the constraints of the Constitution and The Bill of Rights… but they would do well to remember that those rights were implemented by people concerned about unfair prosecutions.

 

Winning Your Disciplinary Hearing: How to Identify and Exploit Your Advantages

 

Every allegation of misconduct is as unique: strategies must be tailored to the student, the witnesses, the available objective evidence, and the allegations themselves. Preparation of a thorough defense involves identifying the intersection between each of these factors – and finding their advantages.

 

For example, many universities run their disciplinary processes concurrently with court proceedings such as criminal prosecutions or restraining order hearings – where parties have many protected rights such as the right to counsel, certain subpoena powers, the right to cross-examination, and the right to a recorded hearing.

 

These rights, and more, may be used to assist your defense at a university disciplinary hearing, where you may not be able to cross-examine witnesses… but you are able to introduce evidence of your own. An experienced attorney may, for example, tailor cross-examination at a restraining order hearing to confront witnesses with inconsistencies in their accusations… and then provide you with a transcript – which can then be introduced at your disciplinary hearing to challenge the reliability of those same witnesses.

 

Attorney Chris Fiorentino has developed a strategic approach to preparing for conflict over the course of thousands of hearings in both courtrooms and conference rooms across Massachusetts – including conflicts involving students at colleges and universities in Greater Boston. If your freedom or your future is at stake, contact Attorney Chris Fiorentino at Fiorentino Legal, P.C. at (617) 789-6374 or by email at cjf@fiorentinolegal.com.

 

With Ethan Xie. Ethan Xie is a rising senior at Milton High School who spent the summer and fall of 2025 interning at Fiorentino Legal, P.C. to build an understanding of the life of a Massachusetts litigation attorney. This article is one of a series that documents the insights he gained through the experience.