University of Virginia Library

Legality Of Honor Code Under Review

By Richard Levin

— Ed.)

The legality and legitimacy of
the role the Honor Committee
performs at the University has
increasingly come under attack.
The time has long since arrived for
a critical review and serious
evaluation of its ubiquitous
presence in the University, of the
scope of its substantive authority,
and the propriety of its singular
penalty. In view of the attention
which these considerations have
received, in a three-part series, I
have undertaken to evaluate (1) the
legality of the required application
of one penalty for every Honor
Offence, (2) the propriety of
disciplinary sanctions instituted
pursuant to the lying-stealing-cheating
triumvirate, and (3)
have concluded with a concrete
proposal for reform of the Honor
Code which, if accepted, would
bring its application within
the permissible boundaries
established by law.

The required expulsion for every
Honor Violation raises fundamental
doubts that the Honor System can
survive any serious legal challenge.
Had the Honor System been
imposed upon University students
as citizens by force of law rather
than as students by university
authority, courts most assuredly
would have designed and involved
more than one penalty. There is no
doubt that expulsion constitutes a
tangible to pursue advanced
education and its causes him to
suffer the loss of a status and a
destruction of a set of relationships
which have unique intrinsic value.
If the fact of expulsion is publicly
disclosed, the imputation of grave
deficiencies defames the student:
like the convicted criminal, the
student may find that the stigma of
his punishment follows him
through life. By its notation on the
student's transcript, the University
may render it impossible for the
student to continue his education
elsewhere, denying him the
university degree which has become
the emblem of education expected
of an ever-widening class and the
prerequisite for an ever-increasing
number of occupations. Although
he retains what knowledge he has
assimilated, the expelled student
attendance is a privilege, revocable
at will, and not a legally protected
right.

Student Rights

If attendance were in fact a
"privilege," constitutional
limitations would be inapplicable
since there must first be either the
infringement of a legally cognizable
"right" or the involvement of a
substantial interest. Courts,
however, have increasingly
recognized the importance of the
student's interest in educational
opportunity, and have likewise
recognized that what is important is
not whether that interest is
characterized as a "right" or a
"privilege," but that the interest,
itself, be calculated and then
weighed against the University's
concerns.

Expulsion Unjustified

Accordingly, unless there
exists a strong counterbalancing
University "interest", expulsion for
every Honor Offence can not be
justified: that counterbalancing
"interest," moreover, does not lay
in the bald deterrent effect
expulsion is thought to have. As a
study of college campuses
published in August, 1970 proves,
the community-held notion that
"the rougher the penalty likely to
be imposed the less likely there is
to be a violation," is simply
unfounded. Indeed, the authors of
that study conclude that the
deterrence which is effective in
college communities governed by
honor systems lies in the existence
of a group of formal sanctions, as
opposed to the existence of a
singularly severe sanction, coupled
with the peer disapproval serious
violations may incur. Thus, unless
the Honor Committee can point to
and articulate an "interest" which
is not unfounded, the
constitutional mandate would
appear to require application of
something more than expulsion for
every non-academic offence.

Laying aside the rights
apparently secured by the
Constitution in this regard, a court
may reach the same result using an
analysis based upon elementary
common law notions of property or
contract. As discussed above, the
student certainly possesses a
substantial interest in maintaining
his enrollment; as such, the
resultant property interest must be
treated and respected as is the
ownership of any other tangible or
intangible possession. Likewise,
one-sided expulsion would appear
to violate basic principles of
contract law. Although courts will
locate the terms of the contract by
referring to the Catalogue (the
Jeffersonian), which reserves broad
discretionary powers to the
Committee, despite the student's