Since Hamas’s attack on October 7, 2023 and Israel’s reaction to it, campus protests have occurred at wide variety of colleges and universities in the United States and elsewhere. College and university administrators have been and continue to be under pressure from constituencies both external and internal, including politicians and donors, to do something about the protests. Two ways in which administrators have reacted has been to call in the police to arrest protesters and to institute campus discipline against protesters.

Criminal prosecution of arrested protesters and campus discipline processes are not mutually exclusive. Because criminal prosecutions have a higher standard of proof than campus discipline processes -- proof “beyond a reasonable doubt” as opposed to “clear and convincing evidence” or “preponderance of the evidence,”-- a criminal conviction can be used to prevent a student from later challenging certain factfinding in a campus discipline proceeding.

For those not criminally prosecuted, the process that governs student discipline in private colleges and universities usually is spelled out in a student handbook or other disciplinary code adopted by the institution. Students in a public college or university have not only contract rights by virtue of the provisions of a student handbook or disciplinary code, but also procedural and substantive rights in the United States Constitution – such as due process and speech protections in the First Amendment – and analogous state constitutions.

From 2015 to 2022, I participated in the Members Consultative Group for the American Law Institute’s Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities. The ALI project opened my eyes to the wide variety of ways in which colleges and universities deal with discipline and how the processes can differ from a criminal prosecution.

In criminal prosecution, a defendant has a constitutional right to confront his or her accusers; if the defendant does not testify, it cannot be held against the student pursuant to the Fifth Amendment; and a defendant has the right to counsel. None of these rights necessarily apply in campus disciplinary proceedings. Pursuant to Title IX of the Education Amendments Act of 1972, the United States Department of Education has issued letters and regulations relating to campus disciplinary procedures for sexual misconduct which many colleges and universities have modified for disciplinary procedures.

The legal risks for campus protesters are many. First and foremost, outside and internal pressures on administrators “to do something” may cause administrators to ignore procedural rules in place or go beyond what is allowed by the law. This outside pressure is real as one can see with the forced resignations of the Presidents of the University of Pennsylvania and Harvard University. Up to now, most campus disciplinary cases have involved either academic dishonesty or sexual misconduct. Academic dishonesty cases usually are handled by student affairs deans or their designates and sexual misconduct cases are handled by the institution’s Title IX Coordinator. The student affairs deans who have handled academic dishonesty cases likely will be unfamiliar with the variety of issues that may arise with respect to a campus protestor.

Second, an adverse decision in a college or university disciplinary proceeding can have collateral consequences beyond whatever discipline is imposed at that time. Suspensions and expulsions usually are on a student’s permanent record and may be disclosed when the student applies to other educational institutions or when the student later in life applies for a professional license or security clearance.

It is important that any student facing campus discipline know his or her rights and make sure that campus administrators are complying with their obligations under applicable codes of conduct and laws. It also is important that any student facing campus discipline make timely and appropriate objections to any procedural irregularities with respect to the proceedings.