How IU plays judge, jury and prosecutor (and why it should stop)

IU students who are suspected of breaking the law don’t just have the Bloomington court system to contend with, they also have to deal with disciplinary action from the University.

But IU’s disciplinary action isn’t necessarily subject to the decision of a court.

Provision II.H.26 of the Code of Student Rights allows IU to discipline students for a “violation of any Indiana or federal criminal law.”

The reason for this charge is obvious. IU wants to be able to discipline students who engage in criminal activity.

The application of the charge is questionable, however, because IU often assigns it and finds students responsible for violating it before a court renders a conviction.

At first glance, it would seem IU is interpreting the law where it has no jurisdiction and making actionable judgments absent a court making a determination of legal fact.

University law consultant Ed Stoner says in his Model Student Code that schools using a charge similar to H26 should cite an additional campus charge.

According to Stoner, this helps to avoid the “mistaken notion that the institution is enforcing the criminal laws.”

IU follows this practice. For example, a student arrested on campus for smoking marijuana could expect to be charged with H26 and H23, which prohibits the use of controlled substances.

One line of reasoning behind the use of such charges is that the University is technically enforcing its own rule rather than a law, even if the rule is against violating the law.

Theoretically, a student found responsible for only H23 should face similar sanctions to a student found additionally responsible for H26 in the same situation.

In this sense, the charge mostly serves an educational purpose — a reminder that the student has responsibilities as a citizen as well as a student.

But students are members of many communities.

A Greek student accused of violating University policy may also be in violation of house policy, but the house rather than the University will discipline him for it.

Similarly, the University should not dabble in what is the proper purview of the courts, even if it is a well-intentioned attempt to educate the student about his civic responsibilities.

Because campus judicial processes and the criminal justice system are separate and use different fact-finding processes, a student may be acquitted in court while the University’s determination that he “violated the rule against breaking the law” stands.

But it should be painfully obvious that, as a technical matter, the University is interpreting the law when it decides whether a student is responsible for violating H26.

Abolishing H26, or changing its application to reflect legal fact, would reinforce the idea that the campus disciplinary system and the criminal justice system are different
entities.

At the end of the day, even though H26 is applied with other campus charges, it still goes into the finding that a sanction is predicated on.

In reaching a determination that a student is responsible for H26, the University is still doing something that ought to first be done by a court.

­— danoconn@indiana.edu