When Brains Are Not Enough, Get a Lawyer!

This is the first installment in this series of blogs by Arthur Chaykin relating to the special problems associated with disputing with an academic institution.

Introduction: Universities and the Rah-Rah Syndrome:

Colleges and universities are regarded as stimulating and dynamic institutions of transformation and discovery. For students, the opportunity to engage in higher education means a chance to explore, grow, and meet other students from similar and diverse backgrounds. It is an academic ecosystem in which faculty, students, and other constituencies contribute, partake, and share in the learning experience. Faculty play an important role in this process and share their experience, research, life experience, and teaching skills with students. Historically, universities are led in a “shared governance” structure in which faculty, and to some extent – students – actively participate in the direction and operation of the universities and colleges with which they are affiliated. Through this participation, they further the academic mission and values of their universities. Academic institutions often refer to themselves as “communities,” and often proclaim their devotion to free expression, free inquiry, academic freedom, and fearless exploration of truth and knowledge.[1]

But increasingly, academic institutions have become modernized, and – in some cases – heavily bureaucratized. Currently, higher education is characterized by a surge in expenditures on administration. In 1980-81, administrative spending comprised just 26% of total educational spending in American colleges, while instructional spending stood at 41%.[2] By 2015, administrative spending and instructional spending were almost even.[3] Among other things, Administrators have added layers of management and many pages of regulations and guidelines. These regulations are often heavily deferential to administrative decision-making within the university. Of course, in cases where there is disagreement, such regulations can place students and faculty at a disadvantage. Faculty and student regulations often require faculty, students, and employees to voluntarily participate in investigations that the university may choose to conduct. As a result, unlike a criminal investigation or even most “arm’s length” civil investigations, the employee, faculty member, or student cannot refuse to participate in the investigation without causing a separate and independent violation of university regulations. A university “investigation” is a worrisome and threatening development for anyone who is the subject of a such inquiry.[4]

Often, students and faculty are unprepared to confront their academic institutions when a conflict arises. Students and faculty often identify with their institutions because they feel as if they are the university. They wear university apparel, cheer their university sports teams, and generally consider themselves part of the “university family” or “university community” (depending on the term of endearment in vogue at that institution). This “rah-rah” effect may make it difficult for both faculty and students who are suddenly in conflict with their university to recognize that they are in trouble and need help. They may “trust” their university to do right by them, and they cannot imagine that their university might take hostile, arbitrary, or even aggressive action against them. Faculty and students need to recognize the “warning signs” of trouble so that they can take appropriate action. And one of the first steps is to realize that the university – in certain contexts – is not your friend with your best interests at heart, and that if you do not properly protect yourself, you can forfeit rights, and make it more probable that there will be a negative and detrimental disposition imposed upon you. Such a determination can have heavily negative consequences for your future academic or professional career.[5]

Warning Signs:[6]

Certain issues should set off a mental alarm bell that causes you to consider retaining professional help. In other words, you might need a lawyer if:

You are told that your college is investigating certain allegations against you.[7]
You are asked to any kind of meeting involving any issue, including a particular incident or any disclosures you made.
You are told that university counsel will be present. In that case, you should respond: “I would like to bring my own lawyer to the meeting.”
You receive a letter or a formal charge indicating that you are under investigation.
You receive an informal notice that your professor, supervisor, or other official with authority over your work at the institution, that they have determined that you have committed an offense and that you will be subject to some form of discipline.
You have been accused of cheating, deception, or lying.
You have been notified that academic or professional discipline is about to be imposed on you as a result of an alleged offense or violation of the honor code, the university code, the conflicts of interest code, the intellectual property or confidential code, or any of the other multitudinous rules, regulations, processes or codes that exist in modern universities.
A complaint is filed against you by another member of the university community.
You are threatened with suspension, expulsion, termination, or even with a failing grade due any form of alleged dishonesty or non-compliance with a rule or regulation.
You are asked to sign a Memorandum of Understanding, a Release, a “Conflict of Interest Agreement,” or “Cooperation Agreement,” a “Stipulated Agreement of Facts” or any other document that is particularly focused on you and purports to characterize an arrangement, an agreement for the future, or present an agreed set of facts as to controverted matter.
You find yourself in a negotiation, investigation, inquiry, or interaction of almost any kind with an attorney representing the university.
You are told by your advisor or supervisor that you need to attend a meeting and once there, you are surprisingly accused of academic misconduct, or some other violation of university rules.

Importantly, whether you hire a lawyer or not, you should be careful not to say anything false or deceptive in any of these interviews that are part of the investigation. Falsehoods will provide the university or college with additional grounds to take negative action against you. Refusing to participate until you can consult with an attorney is a far better choice than lying.

This first article provides an emergency check-list to help you make a determination as to whether you need legal help when a dispute or an adverse action is imminent in the academic institution in which you are a student, administrator, or employee. There are other “non-emergency” situations where an attorney is extremely useful, such as obtaining advice or negotiation help to prevent such problems from even arising. Of course, the choice of a lawyer is an important decision and should not be based on any single advertisement, or blog. Academic settings have some unique attributes and effectively managing issues in an academic context requires a combination of sensitivity, understanding of the academic environment, close reading of rules and regulations, and careful attention to achieving the desired result while maintaining focus on assuring a fair process. Kennyhertz Perry has successfully handled high leverage, sensitive, or contentious matters arising in academic environments and is ready to consult with you in a cost-effective and responsive manner.

[1] Harvard University has, in its coat of arms, the Latin word, “Veritas” (for truth). The motto of Brandeis University is the Hebrew word, “emes” (which also means “truth”) to which Brandeis adds the English tagline, “truth even unto its innermost parts.”

[2] Simon, Bureaucrats and Buildings: The Case for Why College is So Expensive. (Forbes Sept. 5, 2017) https://www.forbes.com/sites/carolinesimon/2017/09/05/bureaucrats-and-buildings-the-case-for-why-college-is-so-expensive/?sh=4de5fae7456a

[3] Id. 24% administrative spending; 29% instructional spending.

[4] One would expect academic institutions to have a great respect for fairness and due process. However, the Foundation for Individual Rights in Education explains that the state of due process at many of America’s academic institutions is “dire.” 41.5% of schools reviewed do not require the fact-finders in hearing to be impartial. Only 28.3% of institutions guarantee a meaningful hearing where each party may see and hear the evidence being presented to fact-finders by the opposing party. https://www.thefire.org/issues/due-process/#:~:text=The%20right%20to%20due%20process,state%20colleges%20and%20universities%20are

[5] For example, the author defended a graduate student in a professional program who was threatened with expulsion from her program just weeks before graduation. The university maintained that she had missed the 48-hour time permitted for an appeal. Through quick action, the student was able to reestablish her appeal rights, and through advocacy, the student managed to obtain a reversal of her department’s determination, obtain reinstatement in her program and graduate. The student is now a working professional in her field.

[6] This is an overview of warning signs. Analysis of each scenario will be provided in future blogs.

[7] Investigations place the party “under investigation” in an awkward position in a university setting. If you are a faculty member, and in many cases – even if you are a student – your employee or student handbook may indicate that you have an obligation to “cooperate” – or to cooperate in good faith – with your college in any investigation. Depending on the circumstances, failure to do so may be cause additional “charges” against you for non-cooperation. If you are at a state or public institution, you may have some limited rights against self-incrimination if the accusations involve criminal conduct. However, in private settings and in most non-criminal settings, you are expected to “cooperate” and it might be held against you if you do not. Often, the first step in any issue involving conflict with a college or university is, “What are my obligations with regard to this investigation.”

To learn more about Kennyhertz Perry, LLC, please visit kennyhertzperry.com.

*The choice of a lawyer is an important decision and should not be based solely upon advertisements.