In their efforts to manage the college environment, many higher-education institutions have deployed complex systems of student discipline — often in the form of legalistic codes of conduct. But, paradoxically, the major challenges involving students on our campuses appear to be getting worse: High-risk alcohol and drug use persists at dangerous levels. Student mental-health issues have never been more prominent. Cheating and a lack of respect for academic integrity are epidemic. The list goes on.
Administrators have commonly believed that student disciplinary codes are legally required or will help combat the risk of litigation. But the Supreme Court has never required colleges to have such legalistic codes and procedures, and those systems now seem to struggle to meet the challenges of the modern university. In fact, the very idea of discipline seems misplaced in higher education today.
Before the 1960s, the law had almost no role in regulating higher education. The earliest American colleges were typically viewed as charitable corporations, and power was usually divided between those who administered the institution under its governing rules and those who ensured that donors’ intent was being faithfully followed. Over the years donor influence declined, and control of the academic environment became concentrated in the hands of each institution’s governing body and administrators. At that time, the law provided no redress for what today would be viewed as obvious wrongs committed by administrators and faculty members on students.
The first case to seriously challenge the power and prerogative of a college to manage students in whatever ways it saw fit was Dixon v. Alabama (1961), which is often heralded as the fountainhead of due process in American higher-education law. In that case, a federal appellate court ruled that six black students who had participated in civil-rights protests and been expelled without a hearing had the right to defend themselves. But the Supreme Court never fully adopted Dixon’s sweeping application of due-process principles to college students.
Indeed, the Supreme Court ducked issues of due process for college students for almost two decades. Then, in Board of Curators of the University of Missouri v. Horowitz (1978) and Regents of the University of Michigan v. Ewing (1985) — both cases that presented the issue of whether colleges could dismiss students in medical programs without due process — the court declined to hold squarely that higher education owed students due-process rights. In Ewing, for example, the court ruled that “considerations of profound importance counsel restrained judicial review of the substance of academic decisions.”
Since then, the only cases in which the Supreme Court has significantly interfered with colleges’ prerogatives to manage students on their own campuses have involved First Amendment or discrimination issues. In essence, the court has held that institutions should have some procedures in place to protect against a manifest factual error being committed that could seriously injure a student. But when decisions involve the exercise of judgment and weighing, and do not admit of simple true-or-false fact verification, such matters are best left to the kinds of academic processes that academics typically pursue. Indeed, the court has viewed overly legalistic systems as inconsistent with educational objectives.
Yet despite that message from the Supreme Court, colleges have overwhelmingly chosen legalistic discipline models, probably because the law entered the American higher-education consciousness for the first time in the 1960s, right when law as a tool for social reform was at an all-time zenith. Colleges also understandably turned to lawyers to assist in ensuring legal compliance after Dixon, and, once involved, lawyers had a tendency to offer legalistic solutions to all types of problems and issues.
Most recently, two trends have emerged in litigation regarding student disciplinary processes. First, some courts now seem to take the position that if higher education wishes to provide legalistic due process, then it will be required to truly provide it. In other words, if colleges are administering mini-court systems, they will be held to the legal standards applicable to court systems.
Second, some courts, beginning with the Schaer v. Brandeis (2000) case in Massachusetts, have taken a rather dim view of legalisms. In the Schaer case, a male student was charged with sexual misconduct and challenged the complex system that Brandeis had in place to protect student rights. Claiming multiple errors in the system, he took his complaint all the way to the Massachusetts Supreme Judicial Court. The Massachusetts Supreme Judicial Court, in a closely divided opinion, held that Brandeis provided substantial fairness. But in sweeping language, it questioned the wisdom of attempting to deploy such legalistic approaches and courtlike processes in higher-education institutions.
In addition to evolving legal trends, college populations have changed in the past decade. Millennial students — those who were born in 1982 or later and started coming to campuses in the early 2000s — have several generational traits, according to many research studies, that do not dispose them to management by legalistic discipline systems. For example:
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To protect their self-esteem, Millennials have grown up constantly rewarded, not punished. Highly complex rule systems with harsh consequences are foreign to people who have been praised for even the smallest successes and whose mistakes have often been glossed over as part of a process of becoming “a better me.”
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Millennials typically have trouble understanding rules as guides for their behavior, unless particularized to them. They have difficulty turning abstract, objective criteria into action steps for themselves without guidance. Discipline officers frequently mention that a student will violate a rule and when confronted with that violation, respond, “I didn’t understand this applied to me.”
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When confronted with rules, whether fully understanding them or not, Millennials instinctively respond with avoidance behaviors. If they don’t like what a college requires or provides, they simply find a way around it. For example, if students are dissatisfied with an institution’s “safe transportation” system, or with the lack thereof, they will use their own cars and cellphones to create a livery service.
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Today colleges’ disciplinary codes and procedures are premised on a vision of individual adult students making free decisions. But singling people out for discipline confuses Millennials, who often make their decisions in close connection with family members and friends.
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Millennials are highly motivated to change behavior when rewards are at stake. Even modest rewards, such as minimal praise in a classroom setting, can spur students to change.
Colleges now feature systems of student self-governance, including honor codes, that Baby Boomers might have loved when they were in school but that Millennials would not choose for themselves, based on the traits that I’ve described. Indeed, they routinely say that they most want mentors, role models, and relationships.
As a result of such trends, colleges should move to reduce the quantity and pervasiveness of legalisms when it comes to dealing with student issues. They should avoid using one-size-fits-all standardized discipline codes and instead develop codes that respond specifically to each of their institutions’ particular situations. Every effort should be made to develop processes that are educationally sound, not legalistic.
Thus, for example, colleges should look to trim complex procedural requirements to allow swifter decision making. They should consider abandoning strict standards of evidence such as “beyond a reasonable doubt” or “preponderance of the evidence,” and talk more in terms of the kind of information that educators would want and need to make decisions. Also, institutions should stop placing so much emphasis on sanctions and move to create more systems of rewards.
While institutions will undoubtedly still have a number of rules, every rule statement in a code or policy should include an explanation of the spirit of that rule — the principles, values, standards that the rule hopes to enforce or foster. As part of that, colleges must accept the fact that certain of those standards, principles, and values will not necessarily translate directly into any one rule or set of rules. A prime example arises from the persistent issues involving hate speech on public campuses. The First Amendment prohibits public institutions from censoring speech through rules that punish unwanted speech. But nothing prohibits an institution from articulating its values. And, most often, the best way to combat hate speech is with education about core values, not with rules.
College must also go the heart of the issue: why they have discipline problems in the first place. At its most fundamental level, disciplinary activity is often caused by the failure of academe to anticipate issues and challenges students will face. Students often drift into, and through, our institutions. Sadly, many enter college with poorly formed ideas about the value of a college education and the real reasons that motivated them to attend. Moreover, students often have widely incoherent individual aspirations that no academic environment can satisfy. Lack of adequate preparation, focus, and intentionality leads to discipline problems. Without some program of support, those students are doomed to fail.
Thus, at the very least, students should develop master academic plans — or MAP’s — for themselves, guided and aided by administrators and college personnel. Before a student arrives at an institution to claim residential space or enter classes, he or she should have engaged in a comprehensive planning process, one that continues throughout that student’s academic career. The master academic plan should be viewed as an organic document that will change over time.
As part of the process, students would be assigned long-term mentors whose positions supersede and incorporate a great deal of current campus advising systems, which typically do not counsel students in a comprehensive, individualized, and continuing way. A new MAP system like the one I envision could, for instance, assign each student a primary mentor who then serves to arrange other services — retention programs, mental-health clinics, career advising — throughout a student’s entire time at the institution. That is just one example; such a system could be organized in any number of ways.
Mentors and students would attempt to identify realistic and achievable goals and desirable outcomes, and do so in the context of understanding the opportunities and challenges that lie ahead. Part of the plan might be as simple as determining that a student should not go home to visit family and friends more than two weekends in a semester. Or, some students who have histories of alcohol or drug use might wish to establish specific rules for their own behavior.
At first glance, the idea of master academic plans may seem to be an expensive proposition for institutions, especially those with thousands of students. But many self-assessment tools, such as those that help determine personality traits or learning profiles and that require little or no expense or administrative time for students to gain large benefits, could be used. Costs could also be reduced by redirecting staff members from other similar functions, like academic advising.
At the same time, colleges could use the master academic plan to establish positive and negative consequences related to how the student interacts with others on the campus and the institution in general. That is the realm in which student codes now dwell, but the MAP process would allow institutions to individualize their expectations. For instance, if a student complies with her master plan and does not regularly go home on weekends but instead positively engages in campus life, she may receive not only praise from her mentor but also other benefits, such as “merits” that could accumulate and be used to receive preference in a housing lottery, for example. A MAP process could also help identify seriously risky and at-risk students — before it becomes too late.
Certainly, colleges will seek to have comprehensive systems that govern all students equally at all times. But colleges overemphasize those systems as a way to manage their environment. The mistake most institutions make is to assume that because objective and broad standards are necessary components of a well-ordered campus community, they are sufficient on their own to create that community. The master academic plan would be individualized and structured to achieve what’s also required: a higher level of intentionality, and a cause and consequence for each student.
The focus of higher education has shifted from preserving the power and prerogative of donors and institutions to empowering students. The emphasis on students requires a movement away from legalisms, codes, and discipline toward helping students help themselves. Such an approach will provide the type of service students both desire and need to succeed and thrive in higher education today.
Peter F. Lake is director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. His new book, Beyond Discipline: Managing the Modern Higher Education Environment, will be published in June by Hierophant Enterprises Inc.
http://chronicle.com Section: Commentary Volume 55, Issue 32, Page A31