Straining The Quality Of Mercy

By:  Jim Erwin
Pierce Atwood, LLP
Portland, Maine

Irresponsible student behavior is a fact of life for higher ed institutions.  The consequences for the student can be an important part of the education process – with regard to both the specific punishment the student receives, and the lesson the student learns about the proper judgment of behavior that violates established norms.  For institutions, however, there is more to reckon with than how to export Shakespeare from the classroom.  For there is also the practical side:  bad behavior sometimes brings about interactions with local law enforcement, and the interests at issue may not lend themselves to producing an objectively merciful result.

When student misconduct triggers the involvement of law enforcement, institutions need to deal with questions such as how much information can or should be provided to outside police, how much to cooperate with an investigation, whether and how much to engage with the prosecutor with respect to the filing of criminal charges, and when applicable, whether to seek restitution.  Each of these situations calls for an understanding of the respective roles of the law enforcement authorities and the institution, the institution’s ongoing relationship with the authorities, and the institutional interests implicated by the situation, including its responsibilities for the rights and interests of its students.  These events also require careful judgment about how best to balance those interests – including in particular when they are in tension with each other.

The following hypothetical scenario helps to illustrate how some of the interests and tensions may arise:

An act of vandalism causes significant property damage on campus.  Campus security’s investigation learns that possible suspects attended a student party where alcohol was being consumed.  The dean’s office interviews several students who attended the party and records their statements.  When no one admits to the vandalism, security calls in the local police to participate in the investigation, and a first-year student is identified as the likely suspect.  At this point the student decides to come forward, based on what he claims is a suggestion of leniency by security during an interview conducted jointly with the city police.  When he does he is whisked off to the city police department for interrogation where he confesses to having impulsively vandalized property while heavily intoxicated.  The student’s attorney asks the institution to advocate to the prosecutor that no criminal charges be filed.  The prosecutor nevertheless charges felony criminal mischief because of the amount of the damage.  He offers a deal to plead to a misdemeanor, and he asks the institution to request restitution to trigger the State’s right to require it as part of the plea agreement.

Some issues to consider with regard to this situation:

1)     Should the dean’s office be conducting interviews relating to the investigation of criminal activity?  The important distinction here between campus security and the dean’s office is FERPA:  records created by campus security are excepted from the definition of “education record” under FERPA, while disciplinary interviews by the dean’s office are not.  The involvement of the dean’s office may suggest to the police that the institution is trying to protect its students – or itself – from scrutiny with regard to responsibility for the alcohol.  FERPA prevents the institution from voluntarily turning the statements over to the police.  The District Attorney will have to subpoena them.  He or she may decide to invoke a process for the production of privileged records that may involve in camera review by the court.  All of this tends to work against a cooperative relationship with law enforcement.  On the other hand, the institution may have good reason to proceed independently of the police to investigate, such as for possible disciplinary action, to protect its own interests with respect to the availability of the alcohol, or other reasons.  Decisions as to who should be doing what in the immediate aftermath of an incident that requires an investigation and implicates the state’s interest in enforcing criminal laws should be made with an eye toward how these interests are likely to be affected.

2)      Should campus security conduct joint interviews with the city police?  This does not seem like a good practice.  The private institution should avoid putting itself in the position of possibly being deemed a state actor.  The interests of the two agencies are not necessarily aligned with regard to the outcome of the interviews.  Also, any benefit to the ongoing relationship with law enforcement from collaboration with the police would be offset by the loss of trust on the part of students.

3)     Should campus security make any suggestions about leniency, either from the institution or the state?  This conduct raises some of the same issues.  There is no authority on the part of campus security to make any such deal, and while security will likely provide a different version of events the resulting fact dispute will hurt the institution’s relationship with the student and parents.  The prosecutor will not want a confession allegedly obtained on this basis.  The danger of confusion and animosity is likely too great to justify use of this technique to extract a confession.

4)     Should the institution advocate on behalf of the student for the prosecutor not to bring criminal charges?  To answer this question we probably want to know more about both the other consequences the student is going to face and the institution’s ongoing relationship with the student.  If the student has been expelled, there is no ongoing relationship to preserve and the scale probably tips against any advocacy for the student – and perhaps even toward using the incident to deter similar behavior by others.  If the student has withdrawn, sparing the institution a disciplinary proceeding, there is no ongoing relationship, yet a basis exists for not actively seeking criminal charges because of the consequences already suffered.  Finally, if the student is to remain enrolled, the institution has more interest in trying to protect the student from a criminal conviction.  However, it must consider the effect of doing so on its relationship with law enforcement, as well as the precedent being set.

5)     Should the institution request restitution as sought by the prosecutor, to facilitate the plea agreement?  Assume the prosecution has charged the student and seeks a plea agreement that involves the payment of restitution.  Assume further that the state cannot seek restitution unless the victim requests it. It’s clear that the institution’s relationship with law enforcement would benefit from making the request.  But what are the other interests?

The following information would be important to resolve this question:

  • What is the cost of repair?
  • What is the insurance coverage, and what is the out-of-pocket cost to the institution?
  • What is the position of the student with respect to the proposed plea agreement?
  • What can the student afford to pay?

If the student is prepared to embrace the proposed agreement, and the institution can agree that it is in the student’s interest to do so, then the institution can satisfy both the student’s and the institution’s interests by doing as requested.  If, however, the prosecutor is seeking the restitution request to gain leverage against the student, the interests have come into conflict.  At this point the presence or absence of a future relationship with the student may be a decisive factor.

Multiple interests are implicated when outside law enforcement agencies come onto campus.  These interests may align, or conflict, depending on the specific facts and circumstances.  The recognition and appropriate balancing of these various interests is a high-level responsibility that should be made by senior administration, with counsel, so that a proper (and privileged) assessment of these competing interests can be made.  The practical result may well be more a calculated weighing of interests than Portia’s “gentle rain from heaven.”

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