You Just Got a Charge Letter From The University: Now What?

Micah Kamrass, Manley Burke, mkamrass@manleyburke.com

As the 2015–2016 school year winds to a close, our team here at Manley Burke wanted to share some strategies that we have found successful when a fraternity or sorority chapter is wrongfully accused of misconduct by a university.

Generally speaking, Greek organizations and universities have the same goals when it comes to chapter discipline. These goals include: punishing wrongdoers, keeping students safe, and allowing students who follow the rules to enjoy all of the opportunities afforded by university life. However, on occasion, Greek organizations feel like universities are rushing to judgment to punish their chapters even when the chapter is not responsible. We are finding that this is especially true when the incidents generate tremendous amounts of media attention.

For those instances when a chapter believes that it is being wrongfully accused, we have generated a list of steps that should be taken in order to provide for the best defense to the charges from the university.

1. Contact Legal Counsel- The earlier your attorneys are involved, the better they are able to help protect your rights. Do this even if the university does not allow direct involvement by attorneys during a hearing.
2. Review the University Charge Letter– At least with public universities, case law is clear that you must be given notice of the specific charges against the chapter and the opportunity to be heard.¹ If the charge letter does not provide for these two items, then the university is not fulfilling its legal obligation or the chapter’s right to due process.
3. Review all Relevant Sections of the Student Code of Conduct- Universities usually outline their disciplinary procedures in these codes. Familiarize yourself with the procedural requirements. Many codes also have specific sections outlining “rights of the accused.” These are important to understand so that you can make sure the university is following through on providing these rights.
4. Familiarize Yourself with University Requirements for Punishing an Entire Group- Schools often levy charges against an entire chapter due to the alleged misconduct of an individual or group of individuals who are in the chapter. Some Universities provide standards for when a group can be punished, and others do not. However, to punish the chapter, Universities must be able to prove that the alleged misconduct was by individuals acting on behalf of the chapter or at a chapter function. The mere fact that an individual or group of individuals who just happen to be in the same chapter engaged in misconduct is insufficient to punish the entire group.
5. Issue a Public Records Request for all Relevant Documents- This should be done at 1)any institution subject to public records laws. It should be noted that even at private schools, police departments may still be subject to public records requests (such as in the State of Ohio).²
6. Ask the University in Advance for a List of Any Potential Witness They May Call Against You and Any Exhibits They Intend to Use- In order to adequately prepare for the hearing, it is important to know who the witnesses will be. Some University codes of conduct require the exchange of information, and others do not. Regardless, the Chapter should request this immediately.
7. In A Hearing, Make Sure That You Cross-Examine Witnesses- Recent court decisions around the country have struck down university disciplinary charges as unconstitutional when the university failed to provide the accused with the opportunity to cross-examine witnesses.³
8. Hold the University to the Standard and Burden of Proof- Most schools now use the preponderance of the evidence standard (also known as “more likely than not”). However, the University is obligated to prove by this standard that the chapter is responsible for the alleged misconduct. It is not the chapter’s job to prove its innocence. Instead, the chapter merely needs to show that the majority of the evidence does not suggest that the chapter is responsible.
9. After a Hearing Ends in a Finding of Responsibility, Go Back and Review the Charge Letter- Recent cases have overturned university disciplinary decisions if the finding of responsibility is for an act other than what the university initially charged the chapter with.⁴
10. Request an Audio Recording of the Hearing – This is tremendously helpful when drafting an appeal of a disciplinary decision.

The University disciplinary process can be overwhelming, but as we have seen, even in cases with large amounts of media attention, a wrongfully accused chapter can prevail in this process.

1. Flaim v. Medical College of Ohio, 418 F.3d 629, 635, 638 (6th Cir. 2005) (“Many times over the Supreme Court has made clear that there are two basic due process requirements: (1) notice, and (2) an opportunity to be heard. The written notice should contain a statement of the specific charges . . . .”)
2. See State ex rel. Schiffbauer v. Banaszak, 142 Ohio St.3d 535, 2015-Ohio-1854, 41 N.E. 3d 444.
3. E.g., Doe v. Brandeis University, No. 15-11557-FDS (D. Mass. Mar. 31, 2016).
4. E.g., Doe v. Rector & Visitors of George Mason University, No. 1:15-cv-209, 2016 U.S. Dist. LEXIS 24847 (E.D. Va. Feb. 25, 2016).