University of Virginia Library

What Are The University's Lawful Concerns?

By Richard Levin

—Ed.

The law requires that regulations
governing student conduct (1)
reinforce a legitimate undertaking
of the University, and (2) where the
objective is legitimate, be written
with sufficient specificity and not
unnecessarily conflict with the
rights guaranteed students by the
due process and equal protection
clauses of the fourteenth
amendment. Thus, if a particular
expulsion denies a student one of
his constitutional liberties, does not
bear a direct relationship to the
achievement of a legitimate
University objective, or, because of
the breadth of its proscription, does
not evince sufficiently specific
standards, that disciplinary exercise
is illegal.

Fundamental Questions

These generalized assertions
raise two fundamental questions
which must be considered: (1) Are
lying, cheating, and stealing lawful
subjects of Honor Committee
regulation? (2) In whose favor are
the cases involving a conflict
between a legitimate interest of the
University on the one hand and of
the student on the other, to be
resolved?

The Honor Committee expels
students who it determines have
conducted themselves in an
ungentlemanly fashion, that is, by
definition, who have been guilty of
lying, cheating, or stealing. It is, at
the outset, doubtful that a general
proscription couched in terms of
gentlemanliness provides the
sufficiently specific standards
required by the Constitution. In
any event, the current formulation
of the Honor Code prohibiting
lying and cheating and stealing in
all instances clearly exceeds the
extent to which imposition of
sanctions by a university is
permissible.

Criteria For Dismissal

Although the Honor Committee
certainly may dismiss a student for
his dishonesty which undermines
the execution and integrity of the
University's educational
responsibilities, in its strictest sense,
or for conduct which is disruptive
of good order in academic facilities,
or which results in the damaging or
defacing of University property, or
which endangers the health or
safety of others on campus, it
clearly may not expel a student for
ungentlemanly activity or behavior
in which the University has no
lawful interest; a lawful interest
exists only where the University
seeks to discharge its educational
responsibilities or generally to
maintain good order in its facilities.
Prohibitions on lying-stealing-cheating,
however, designed to
foster gentlemanly character
development, merely to duplicate
the civil or criminal law, which
limit speech, assembly, publication,
or which generally have no direct
bearing on the University's
academic mission, are unlawful and
constitutionally inappropriate.

A regulation is permissible only
so long as it directly contributes to
a substantial interest of the
University, and only where the
behavior proscribed, if permitted,
would directly interfere with a
specific process considered a
legitimate undertaking of the
University. Thus, if expulsion for
lying or cheating or stealing in a
particular case would merely
duplicate some civil or criminal law
sanction, or if expulsion for lying
or cheating or stealing would not
clearly and substantially reinforce
the fundamental "academic"
mission of the University, then it
must be discarded; the alternative
to voluntary clearing the Honor
System of this constitutional
impediment is, as is clearly
foreseeable, highly undesirable. Like
all other State governmental
functions and institutions, the
University, because it is governed
by the Constitution, can not exceed
the fine line which divides its
interests from those of the
individual and the community.

Suppose, for example, that
student A, in a poker game in an
off-campus apartment with friends,
including classmate B and
non-students X and Y, is caught
cheating by X. Suppose, further,
during the course of the
conversation accompanying the
game, in response to Y's question,
A lies by saying that he has failed
to study for the History I exam
scheduled the next afternoon,
whereupon B relied and elects to
continue the game in lieu of
studying. And suppose, further, on
his way back to his room in the
dorm, A is caught stealing money
from student C's wallet in C's
room. What action?

Accusation No. 1: Cheating

The circumstances of this
accusation present the classic case
involving no legitimate University
interest contrasted with the
student's substantial interest in
continuing his education. The sole
purpose to be served by permitting
this Honor prosecution would be
the cultivation of gentlemanly
behavior and character training,
which, as we have seen, comprises
an area of endeavor foreclosed to
Committee disciplinary
consideration.

Unless expulsion of 'A' for
cheating at cards would directly
fulfill a lawful concern of the
University, which it clearly would
not, there is no acceptable rationale
which can permit its exercise;
unless there has already been
misconduct affecting the
University's pursuits, there has been
no harm to the University's
processes. If student A has indeed
cheated, his punishment lies with
the civil or criminal law, if
applicable, or with the informal
sanctions his community may
impose. No balance need be struck
here, as the Honor Committee is
devoid of any legitimate interest or
responsibility in this matter.

Accusation No. 2: Lying

The result reached above must
also be reached here, and for
precisely the same reasons, unless it
can be demonstrated that A's lie in
some way undermined honest
academic pursuit. For the sake of
argument, let us assume that the
sanctity of the educational process
has, indeed, been violated: B,
induced by A's lie, failed to prepare
further for his History I exam and
was lulled into a false sense of
security fostered by his belief that
he was at least as well prepared as
one of his classmates. Although the
University and student-A each have
a stake in an apparent conflict, if
the integrity of the University's
educational processes have, in fact,
been transgressed, then A's
educational investment must yield.

Accusation No. 3: Stealing

Unless the University's
legitimate interest in maintaining
order and safety within has been
endangered, this accusation, as in
the case of accusation No.1, must
be dropped. It is possible, however,
to articulate an interest in favor of
the University's regulating student
conduct where one student has
stolen the property of another on
University grounds. Laying aside
issues raised by the single penalty
requirement, the Committee would
be justified in striking the balance
in favor of the University's interest
if, ignoring the parietal controversy,
the. Committee were to be
persuaded of adequate criminal law
penalties, under this analysis, is
arguably irrelevant.

When the issue of the single
penalty is raised, however, the
balance night very well shift in
favor of the student since the
damage to the University's
processes is comparatively
negligible. The extraordinary result
apparently required by the current
state of the Honor System -
expulsion for a lie perpetrated in an
off-campus poker game in response
to a question posed by a
non-student fortuitously answered
in the company of a fellow
student-would appear to
demonstrate conclusively the need
for multiple penalties and for
increased Committee flexibility.

Relevant Considerations

The application, moreover, of
three relevant constitutional
considerations leads to the same
results: the constitutional doctrine
of (a) unconstitutional conditions
(b) equal protection, and (c)
substantive due process. Suppose,
for example, that student Z, during
the course of his speech at a
campus rally protesting a recent
administrative appointment in the
University, knowing falsely accused
that appointee of having committed
grand larceny eight years earlier.
What action would lay against Z?

Clearly, Z has purposely lied;
though Z may well have understood
that lying would subject him to
disciplinary action under the Honor
Code, any such disciplinary action
taken against him would likely
constitute an affront to his first
amendment rights of freedom of
speech on each of the above
constitutional bases: (a) Continued
attendance at the University may
not be conditioned on his waiver of
those rights. (b) Because any
remedy under identical
circumstances involving a
non-student would necessarily be
confined to available civil remedies,
the, application here of a second
penalty - expulsion - is
discriminatory and a violation of
the equal protection clause. (c)
And, any Honor conviction secured
against Z would likely be reversed
on due process grounds as well:
possess certain fundamental civil
liberties, among them freedom to
speak, which can be exercised so
long as he does not substantially
interfere with, or pose a clear and
present danger to, the continued
operation of the University.

Thus, fundamental substantive
limitations exist which circumscribe
the ability of the Honor Committee
to regulate and discipline students.
It is high time that these
substantive does not threaten a
lawful function of the University,
its proscription is logically
inappropriate and constitutionally
impermissible.