Article XV (15) of the City University of New York Board of Trustees Bylaws is known as the “student due process” section of the bylaws. The article grants the individual student governments the right to charter student organizations on their respective campuses, establishes the University Student Senate as the official representative body of all CUNY students, and also outlines the composition of the student-faculty disciplinary committee and the disciplinary process. Most recently, the University has proposed several amendments to Article 15 to bring the University into compliance with new federal law that modifies how Title IX cases (cases involving sexual harassment and sexual assault) are investigated and adjudicated on campus. It should be noted, however, that some of the substantive revisions to the Board of Trustees bylaws are not mandated by the federal government; for example, the proposed revision to eliminate a student’s a right to remain silent without assumption of guilt during a campus disciplinary hearing. Moreover, campus adjudications do not distinguish between the severities of the infraction. Therefore, in order to protect against procedural inadequacies that might impinge on students’ rights it is important to call for an in-depth examination of the broader implications the proposed amendment–those not required by the government–might have on student’s rights.
Over the past ten months, the University Student Senate has continuously voiced our concerned over the proposed amendment to the bylaws removing an accused student’s right to remain silent without assumption of guilt from the bylaws. The right to remain silent without assumption of guilt was originally adopted by the Board of Higher Education of The City of New York–the predecessor of the Board of Trustees–on November 23, 1970. Since then, the provision has served as a procedural safeguard providing students the opportunity to avoid selfincrimination and/or from disclosing defense strategy prior to a subsequent or concurrent criminal proceeding.
II. Position of the University Student Senate
The University Student Senate fervently believes that eliminating an accused student’s right to remain silent without assumption of guilt will lower the due process protections afforded to students and also reduce the University’s and individual college’s ability to sort out the truth. Permitting a disciplinary committee to draw negative or adverse inference from a student’s choice to exercise his right to remain silent, will simply create greater room for rendering erroneous guilty verdicts and imposing potential severe punitive orders like dismissal and suspension; both of which have harsh implications on a student’s career and future prospects.
III. University Student Senate’s Rationale
Currently, the evidentiary burden of proof employed in adjudicating all disciplinary case– regardless of the seriousness of the alleged misconduct–is a “preponderance of the evidence” or a 51% standard, that the student committed the alleged misconduct. Although this evidentiary 2 burden of proof is also the standard used in civil proceedings, the courts, unlike the University, afford several procedural protections, including but not limited to; excluding hearsay, requiring both parties to exchange, prior to a trial, any information and evidence intended to be used at trial, and also requiring parties and witnesses to given statements and testimony under oath or affirmation. These procedural protections therefore balance the low standard of proof and help ensure a fair proceeding.
Unfortunately, as stated above, the University does not offer the same procedural protections but still employs the same low standard of proof. Therefore, removing the right to remain silent without assumption of guilt from our campus disciplinary process will undermine the balance, accuracy and fairness of our process by potentially allowing the burden of proof to be satisfied by the negative inference(s) drawn from a student’s choice to remain silent and other substantive evidence entered during the hearing that would otherwise have been inadmissible in a noncampus proceeding. This confluence of factors may be enough to compel a student to testify, to create the risk of erroneously depriving a student of her/his liberty and property interest and may also expose an accused student to subsequent criminal prosecution because, as mentioned in the bylaws, any statements made during a campus disciplinary hearing can be used in a non-campus hearing.
Furthermore, the punitive order imposed on a student following an erroneous and unjust verdict have far greater consequences that outweigh the University’s fiscal or administrative burden arising from proscribing negative inferences to be drawn from a student’s silence. If a student is suspended from the University for serious misconduct, then the student is essentially precluded from continuing her/his education at another University that automatically bars applicants with a suspension on her/his record from being admitted. In an age when a college degree is now a baseline requisite for most job openings, a wrongly suspended student could have her/his entire career jeopardized because of a faulty disciplinary system that would result from removing a vital procedural protection for accused students.
Although the current justification provided for the removal of a student’s right to remain silent without assumption of guilt is that the provision is an “incorrect statement of the law,” let us remind the University that the U.S. Constitution and laws of our state represent a floor and not a ceiling for individual rights to be built upon. The Board of Trustees has the authority and discretion to afford students heightened substantive due process. Nevertheless, after 44 years with a raised floor, the University–by removing the provision in question from the bylaws–will be eviscerating the foundation of our disciplinary process. The University Student Senate, therefore, respectfully requests the Board of Trustees to effectuate fair and just disciplinary proceedings by scrupulously observing student’s due process and preserving a fundamental canon of our disciplinary process–the right to remain silent without assumption of guilt.