Colleges today face a spectrum of student-related challenges: cheating, hazing, sexual violence, drug and alcohol use, discrimination, student debt, free-speech issues, and more. Yet many of the techniques we have relied on historically, such as using discipline or honor codes to enforce campus rules, seem insufficient to meet these issues. And the more we enforce our rules, the more we find ourselves in court — or at least in the court of public opinion — defending those rules. Have our legalistic codes and procedures become unsustainable?
The answer is yes.
The path forward is a reformation of those practices — and, fortunately, it’s already underway. The law says that the student-college relationship is substantially “contractual,” and until recently most of that contractual power has been in the hands of the institutions. Now, higher education is looking with fresh eyes at the student contract.
The result: We are more focused on treating students respectfully. The rise of consumer power has made the idea that we should manage our campuses with adversarial discipline systems seem outmoded. Modern students (and their families) pay the freight and are predominantly legal adults. As a result, “respect” — which implies fairness — is replacing “discipline” as a guiding principle.
In this emerging order, institutions have become increasingly proactive and preventative — not simply reactive. Not long ago, there were limited Title IX response systems on campuses; the college police were primarily responsible for securing building and grounds, not protecting people; student “care” teams were not ubiquitous. Today, institutions have made a conceptual leap by embracing strategic risk management.
Modern students (and their families) pay the freight and are predominantly legal adults. As a result, ‘respect’ — which implies fairness — is replacing ‘discipline’ as a guiding principle.
Consider Penn State’s decision, now widely emulated, to bring strategic risk management to the core of its operations in the wake of scandal. Simple steps toward risk management can potentially save lives and millions of dollars. For example, imagine the impact on overburdened Title IX systems if institutions were able to effectively screen sexual predators — students or staff — before they arrived on campus.
Predictably, some colleges have chosen to move away from heavy reliance on legalistic discipline or honor codes, except where they may be needed when the college’s relationship with the student must be severed. A refreshing burst of educational energy is evident in a new approach to campus management that is more focused on students and the educational experience.
A step back in time can put our relationship with law and legalisms in context. Our industry’s modern reliance on legalistic discipline/honor codes started with the United States Court of Appeals for the Fifth Circuit’s 1961 decision in Dixon v. Alabama State Board of Education, which extended due-process rights to students in disciplinary hearings at public colleges.
Nine years later, in the wake of the shootings at Kent State University and Jackson State College, the President’s Commission on Campus Unrest, known as the Scranton Commission, produced a report that scathingly detailed the complete breakdown of campus management at virtually every level. The message to colleges was clear: Find a way, now, to manage campuses more effectively.
Academic administrators responded by building what we recognize today as the first generation of modern college codes and procedures. Our industry turned to lawyers to help draft them. Not surprisingly many of the new codes were written in high legalese, using language and systems familiar to lawyers. Of course, the number of professionals required to interpret and enforce the codes — many with legal training and experience — has only expanded since then.
The imposition of legal structures on student behavior has been successful in many ways. Peace was restored on campuses; discrimination was addressed; basic fairness to students in an adverse position promised. In the beginning, courts routinely deferred to campus discipline systems. Today, however, courts have begun to lose faith in college disciplinary processes — seeing both underuse and overuse of legalistic rules and procedures.
Pressure for reformation has been too powerful to resist, and a breakthrough in thinking among higher-education administrators is fueling the change: Legal compliance does not require colleges to mimic the legal system in every way; fundamental fairness in higher education is not the same as fairness in a court of law.
Institutions like the University of Central Missouri have made the decision to reimagine how such an educational environment might be managed. UCM now relies on a “Guide to Good Decision-Making,” which is written in understandable language and creates a less legalistic framework for interacting with students. The guide retains some necessary and traditional features of codes, because at times an institution is required to use and follow the law directly; at other times it may become an adversary.
The guide is revolutionary in its reliance on “educational conferences” with a focus on values and standards as a primary tool of direct intervention with students in most situations. Tulane University has taken similar steps this fall with its new code — overtly incorporating its Seven Core Values into its process.
Students can turn to these educational conferences for all sorts of reasons. For instance, a student might request a conference about a roommate in distress, perhaps when the roommate is not seeking help herself. The conference in this situation might help the student initiating the conference to understand her options. Conferences can also be helpful when a student has a series of class absences that do not otherwise trigger specific academic responses, such as exclusion from an exam. There is often something going on when there is a pattern of unexplained absences — even the risk of suicide.
Still other educational conferences revolve around the challenges of having serious family matters at home. The messages of educational conferencing are: Don’t wait for something to go wrong or for a rule violation, and students shouldn’t have to wait for us to come to them first. Call the conference an “informal hearing” if you have trouble breaking free from legalistic thinking — but do so at the risk of missing the point. Certainly, the educational conference is not suited for every occasion: Serious matters involving sexual violence require processes that suit the gravity and context of that situation.
It seems increasingly unlikely that future students will want to invest in a higher-learning experience dominated by college “courts” and adversarial institutional relationships. Fortunately for them, and for the institutions, past excessive entanglements with the law and legal system have pushed the higher-education industry to explore forms of fair, nonlegalistic procedures uniquely suitable to a learning environment.
Peter F. Lake is a law professor and director of the Center for Higher Education Law and Policy at Stetson University College of Law.
