Can universities discipline rioting students?

Out-Law Analysis | 18 Nov 2010 | 1:39 pm | 2 min. read

OPINION: Universities shocked at the behaviour or some of their students at last week's protests in London might well be able to take action against individuals, even if events happened far away and are being investigated by police.

There were 40 injuries at the demonstrations against education cuts and 60 people were arrested. Some protesters were pictured engaging in destructive behaviour, and police and prosecutors will be considering their next steps.

University administrations might well think that the fact that law enforcement authorities are involved and that events happened far from their campuses mean that they can take no action, but that is not necessarily the case.

Universities will have to be cautious, it is true, but many disciplinary procedures will allow for action to be taken against individuals, especially in the light of the risk of further angry and violent scenes on the next planned day of protest, 24th November.

First, universities should examine the disciplinary regulations that form part of the contract formed at enrolment between a student and the university. This will have a section on misconduct which will usually include a prohibition against bringing the university into disrepute. It may also define being convicted of any criminal act – whether to do with the university or not – as misconduct.

If regulations give grounds for a university to take action, they must continue to proceed cautiously, making sure that students are given the benefit of a fair disciplinary process.

This means the student should be given a fair chance to put their case; they must not face apparent bias or pre-determination; and they must be given sufficient notice and detail of the case so that they can prepare a defence.

Does it matter that the police may also be taking action over the same incident? Not as much as universities might think. Though it is often argued that pursuing internal proceedings before completion of an associated criminal case could prejudice a student, there is no actual rule which says this. It will be up to the student to demonstrate that there is a real risk of prejudice.

For very serious matters, though, a university might want to think hard about whether their procedures are appropriate at all. A university disciplinary committee is not a criminal court and will not have the expertise to try matters where a high standard of proof and forensic examination of evidence is required, as well as extremely skilful and careful handling of witnesses.

An alternative is to wait until a criminal case has concluded, since a university could rely on  court evidence if there is a conviction.

Similar care needs to be taken over evidence in very serious cases. University disciplinary procedures operate on the basis of the civil standard of proof of the balance of probabilities, rather than the stricter criminal standard of beyond reasonable doubt.

If a university is considering serious sanctions such as expulsion then it should take more care to satisfy itself that the offences occurred than in more minor cases.

Universities might suspend students while awaiting the outcome of a trial. Even this, though, should be reviewed regularly because though it is formally a neutral act, it can have a dramatic effect on a student's progression.

Universities may have more options than they think, even if the police are involved in an incident. But if they want their disciplinary procedures to help to punish and deter violent or criminally damaging behaviour, they will need to make hard decisions on when, and when not, to discipline students.

By Julian Sladdin, a legal director with Pinsent Masons, the law firm behind OUT-LAW.COM. The views expressed are Julian's and do not necessarily represent those of the firm.