Could the University of Maryland discipline a student for something that happened off campus, like a fraternity house incident?

Plain-English summary

A group of Prince George's County legislators asked the Attorney General, in early 1989, whether the University of Maryland College Park had legal authority to discipline students for off-campus misbehavior, prompted by complaints about vandalism, disorderly conduct, and fake IDs tied to off-campus student housing and fraternity houses. At the time, the University's policy left off-campus conduct entirely to the criminal and civil courts. The Attorney General concluded that a public university legally could discipline students for off-campus conduct detrimental to the institution's interests, citing a substantial body of federal case law upholding university discipline for off-campus drug offenses, violence, and disruptive conduct, but stressed that any such discipline had to meet ordinary constitutional safeguards: fair notice through a clearly written rule, due process before a hearing, no arbitrary discrimination between students, and no punishment for constitutionally protected speech. Whether to actually adopt such a policy, the opinion made clear, was a policy choice for the Board of Regents or the General Assembly, not something the law required.

Currency note

This opinion was issued in January 1989 and analyzed the University of Maryland College Park's Student Code of Conduct and the University System's governing statute as they existed shortly after a 1988 statutory reorganization, Chapter 246 (Senate Bill 459), Laws of Maryland 1988. University governance statutes, the Student Code, and the underlying federal case law on student discipline have had decades to develop since 1989. This page is a historical record of how the Attorney General analyzed the university's authority at the time. It describes what the opinion concluded then and is not a statement of current University of Maryland System policy or current constitutional doctrine governing student discipline. Verify current law and current university rules directly before relying on anything here.

Common questions

In 1989, could the University of Maryland discipline a student for something that happened off campus?
Yes, according to the opinion. It concluded that a public university could legally discipline a student for off-campus misconduct that was detrimental to the institution's interests, though the University's own policy at the time left off-campus conduct to the criminal and civil courts instead.

Did the university's Student Code already let it punish off-campus behavior when this opinion was written?
No. The opinion noted the Student Code did not expressly authorize discipline for off-campus misconduct, and recommended that if the University wanted to change that policy, it should amend the Code to specifically provide for it.

What kinds of off-campus conduct did courts say a university could discipline, according to this opinion?
The opinion pointed to cases upholding discipline for off-campus drug offenses, unlawful possession of drugs, criminal contempt of court, reckless driving that also violated a campus conduct rule, and disruptive or violent behavior at an off-campus party, all treated as detrimental to the university's interests or its students' welfare.

What limits did the opinion say applied to disciplining a student for off-campus conduct?
The opinion said any such rule had to be clearly written so students could understand what was prohibited, could not be applied in a way that discriminated arbitrarily between students, had to include fair notice and an opportunity to be heard, and could not be used to punish a student for exercising a constitutionally protected right like free speech.

Background and statutory framework

The University of Maryland College Park's Student Code of Conduct was adopted by the Board of Regents under its statutory authority, then found at former §13-104(d) of the Education Article and carried forward in similar form at ED §12-106(d) after the General Assembly's 1988 reorganization of the Education Article, Chapter 246 (Senate Bill 459), Laws of Maryland 1988. The Code described the University's "inherent authority" to "take necessary and appropriate action to protect the safety and well-being of the campus community," but the opinion found it did not expressly reach off-campus misconduct, since the University's existing policy left off-campus, private student conduct to the ordinary criminal and civil justice systems.

The opinion surveyed a substantial body of federal case law recognizing that public universities have comprehensive, though not unlimited, authority to set and enforce standards of conduct, including for off-campus behavior detrimental to the institution's interests or its students' welfare. It discussed cases upholding discipline for off-campus drug offenses (including a University of Maryland pharmacy student dismissed for illegal drug possession), criminal contempt of court, reckless driving that also broke a campus rule, and disruptive conduct at an off-campus party, while noting that the older "in loco parentis" theory once used to justify broad university control over students' off-campus morals had been largely discredited by the time of this opinion. Against that backdrop, the opinion concluded a public university could constitutionally discipline off-campus misconduct detrimental to its interests, but only within firm constitutional limits: the governing rule had to be clear enough to avoid being void for vagueness, could not be applied in an arbitrarily discriminatory way between students or types of offenses, had to satisfy due process (notice and an opportunity to be heard), and could not be used to penalize a student for exercising First Amendment or other constitutionally protected rights. The opinion left it to the Board of Regents or the General Assembly to decide, as a matter of policy, whether to actually extend the University's disciplinary reach to off-campus conduct.

Citations and references

Statutes:

• former §13-104(d) of the Education Article, the Board of Regents' original statutory authority to approve student discipline rules
• ED §12-106(d), the successor provision after the 1988 reorganization
• Chapter 246 (Senate Bill 459), Laws of Maryland 1988, the law reorganizing the Education Article and the University of Maryland System's governance

Cases:

• Goss v. Lopez, 419 U.S. 565, 574 (1975), Healy v. James, 408 U.S. 169, 180 (1972), and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507 (1969), Supreme Court cases recognizing a state's comprehensive authority to set conduct standards in public schools and universities
• Bradshaw v. Rawlings, 612 F.2d 135, 138-40 (3d Cir. 1979), on the discrediting of the old "in loco parentis" theory of university authority
• Robinson v. University of Miami, 100 So. 2d 442 (Fla. App. 1958), White v. Portia Law School, 274 Mass. 162, 174 N.E. 187 (1931), and Tanton v. McKenney, 226 Mich. 245, 197 N.W. 510 (1924), older cases decided under the in loco parentis theory
• General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133, 145 (W.D. Mo. 1968), the influential federal district court order setting out standards for university discipline cases
• Krasnow v. Virginia Polytechnic Institute and State University, 414 F. Supp. 55, 56 (W.D. Va. 1976), upholding university discipline for off-campus marijuana possession
• Sohmer v. Kinnard, 535 F. Supp. 50 (D. Md. 1982), upholding the University of Maryland School of Pharmacy's dismissal of a student for illegal drug use and possession
• Paine v. Board of Regents of the University of Texas System, 355 F. Supp. 199 (W.D. Tex. 1972), on drug-offender discipline and, separately, on unequal disciplinary procedures violating equal protection
• Wallace v. Florida A & M University, 433 So. 2d 600 (Fla. App. 1983), upholding expulsion for a cocaine distribution conviction
• Due v. Florida Agricultural and Mechanical University, 233 F. Supp. 396 (N.D. Fla. 1963), upholding discipline based on a criminal contempt finding
• Cornette v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App. 1966), upholding suspension for off-campus reckless driving that also violated a campus conduct rule
• Kusnir v. Leach, 64 Pa. Cmwlth. 65, 439 A.2d 223 (1982), upholding suspension for disruptive behavior at an off-campus party
• Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), upholding discipline for participation in demonstrations near campus
• Sword v. Fox, 446 F.2d 1091 (4th Cir. 1971), and Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969), addressing whether a student conduct rule is unconstitutionally vague
• Grayned v. Rockford, 408 U.S. 104, 115 (1972), the overbreadth doctrine requiring rules affecting speech to be narrowly tailored
• Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), and Goss v. Lopez, on the due process notice and hearing requirements for student discipline
• Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), on limits to regulating the content of student speech
• Wimmer v. Lehman, 705 F.2d 1402, 1406-07 (4th Cir. 1983), Hart v. Ferris State College, 557 F.Supp. 1379, 1384-85 (W.D. Mich. 1983), and Furutani v. Ewigleben, 297 F.Supp. 1163, 1165 (N.D. Cal. 1969), on the interplay between a disciplinary hearing and a pending criminal case, including the right to counsel and the privilege against self-incrimination

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 147-156 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

EDUCATION

University of Maryland - Student Discipline - University May
Discipline A Student For Off-Campus Misconduct Detrimental To
University Interests, Subject To Constitutional Limits

January 23, 1989

The Honorable Arthur Dorman
The Honorable Timothy F. Maloney
The Honorable Pauline H. Menes
The Honorable James C. Rosapepe
21st District Delegation
Maryland General Assembly

 You have requested our opinion concerning the authority of the

University of Maryland College Park to discipline its students for
misconduct that occurs off the grounds of the campus. You have also
inquired about any constitutional constraints on the General Assembly's
or the University's exercise of such authority.

 In your inquiry, you relate that "the College Park community has

been plagued by problems with student vandalism, disorderly conduct,
use of fraudulent identification and other unlawful activity" and that
this misconduct is usually associated with the presence of "[m]any
student residences and fraternity houses ... located off-campus."

 As we understand it, the University of Maryland College Park has

assumed no authority - nor, correlatively, risked any potential legal
liability - over the off-campus, private conduct of individual students
or student organizations (including fraternities and sororities). Rather,
the University's policy is that jurisdiction over private conduct and
activities occurring off-campus should reside in the criminal and civil
justice system.1

 1 The type of misconduct that you have illustrated might be subject to criminal

prosecution by local law enforcement authorities. It might also serve as grounds for
civil liability if a victim were to bring a common law tort action. In a letter of advice
dated December 3, 1987 to Delegate Menes, Assistant Attorney General James J.
Mingle, Chief Counsel for Educational Affairs, described the basis and manner in

 For the reasons stated below, we conclude that a State university

or college may discipline a student for off-campus misconduct
detrimental to the interests of the institution, subject to the fundamental
constitutional safeguards that apply to all disciplinary actions by
educational officials.

                                I

                             Background

The University of Maryland College Park's student disciplinary

rules, set forth in the UMCP Code of Student Conduct, were approved
by the Board of Regents pursuant to its statutory authority to provide
for the discipline, suspension, expulsion, or reinstatement of any
student. See former §13-104(d) of the Education Article ("ED"
Article).2 The Student Code begins with the following general

 1
   (...continued)

which the University of Maryland College Park regulates the activities of fraternities
and sororities, many of which are housed off campus. Your present inquiry focuses
on off-campus misconduct of individual students. So, we perceive no need to
reiterate here campus rules governing student organizations, other than to
acknowledge that the University's present policy position appears to be based, in part,
upon the concern that increased control over the activities of off-campus student
organizations could conceivably increase the risk of third-party tort liability.
2
This citation is to the Code section in effect at the time that UMCP's Code of
Student Conduct was approved. The Education Article has since been extensively
revised as a result of the General Assembly's enactment of Chapter 246 (Senate Bill
459), Laws of Maryland 1988. Nevertheless, the current statutory authority of the
Board of Regents for the University of Maryland System is similar. ED §12-106(d)
states:
In consultation with the Chancellor and the presidents, the Board
may adopt policies providing for:
(1) The discipline, suspension, expulsion, or reinstatement
of any student; and
(2) The recognition and conduct of student organizations
and athletic programs and activities.
Furthermore, the transition provisions of the recently enacted law provide that "...
all rules and regulations ... guidelines, policies ... associated with the [former] Board
of Regents ... shall continue in effect under the [new] Board of Regents ... until
completed, withdrawn, cancelled, modified, or otherwise changed pursuant to law."

description of the University's "inherent authority": "The University
reserves the right to take necessary and appropriate action to protect
the safety and well-being of the campus community." Student Code

14. The Student Code also sets forth specific types of misconduct that
    are subject to disciplinary action, potential sanctions for violation of the
    disciplinary regulations, and guidelines for disciplinary proceedings.
    Student groups and organizations, as well as individual students, may
    be charged with violations of the Student Code.

The Code's provisions are to "be read broadly and are not designed
to define misconduct in exhaustive terms." Student Code 13.
Nevertheless, the current Student Code does not expressly authorize the
University to discipline students for off-campus misconduct.3

                                II

         Authority to Discipline Off-Campus Misconduct

 The United States Supreme Court has repeatedly recognized that a

state has comprehensive authority to prescribe and enforce standards of
conduct in its public schools and universities, consistent with
fundamental constitutional safeguards. See Goss v. Lopez, 419 U.S.
565, 574 (1975); Healy v. James, 408 U.S. 169, 180 (1972); Tinker v.
Des Moines Independent Community School District, 393 U.S. 503,
507 (1969). In the school environment, the state's power is not limited
to prohibiting lawless actions; it may also prohibit actions which
"materially and substantially disrupt the work and discipline of the
school." Healy, 408 U.S. at 189.

Many of the earlier student discipline cases were based on a theory

that the college authority stood in loco parentis for the physical and
moral welfare and mental training of the pupils. The courts upheld
public universities' disciplinary actions against students who engaged

 2
 (...continued)

Chapter 246, Section 14. Thus, the UMCP Code of Student Conduct continues in
effect until changed by the new Board.
3
If the University decided to change its policy and impose disciplinary sanctions
for off-campus actions, consistent with the limitations described in Part III below, it
should amend the Student Code in order to provide specifically for this new basis for
discipline.

in immoral conduct off campus, often finding the student unfit for the
profession for which he or she was studying.4 This theory is now
largely discredited. See Bradshaw v. Rawlings, 612 F.2d 135, 138-40
(3d Cir. 1979).

 More recently, numerous lower federal courts have upheld the right

of public universities to discipline students for off-campus misconduct
that is detrimental to the interests of the university or to the welfare of
its students. The reasoning behind this view of the universities'
authority was well-stated by a United States District Court confronted
with several major student discipline cases:

           In the field of discipline, scholastic and
       behavioral, an institution may establish any standards
       reasonably relevant to the lawful missions, processes,
       and functions of the institution....

           Standards so established may apply to student
      behavior on and off the campus when relevant to any
      lawful mission, process, or function of the institution.
      By such standards of student conduct the institution
      may prohibit any action or omission which impairs,
      interferes with, or obstructs the missions, processes
      and functions of the institution.

General Order on Judicial Standards of Procedure and Substance in
Review of Student Discipline in Tax Supported Institutions of Higher
Education, 45 F.R.D. 133, 145 (W.D. Mo. 1968) (en banc).5 See,
e.g., Krasnow v. Virginia Polytechnic Institute and State University,

 4
   See, e.g., Robinson v. University of Miami, 100 So. 2d 442 (Fla. App. 1958)

(student enrolled in program leading to a certificate to teach in secondary education
dismissed for letter he wrote to a local newspaper dealing with the subject of
atheism); White v. Portia Law School, 274 Mass. 162, 174 N.E. 187 (1931) (law
school student boasted to classmates that she had used knowledge gained in the
classroom to purchase goods with no intention of paying for them); Tanton v.
McKenney, 226 Mich. 245, 197 N.W. 510 (1924) (female student in teachers' college
dismissed for smoking cigarettes in public and other indiscretions).
5
In this unusual order, the full District Court for the Eastern District of
Missouri set out "a statement of judicial standards of procedure and substance" to
achieve uniformity in the student discipline cases then pending in the court. 45
F.R.D. at 135.

414 F. Supp. 55, 56 (W.D. Va. 1976), aff'd, 551 F.2d 591 (4th Cir.
1977) ("students enrolled in state supported institutions acquire a
contractual right for the period of enrollment to attend, subject to
compliance with scholastic and behavioral rules of the institution, and
to dismissal for violation thereof ...").

Several of the reported cases in which a student has challenged a

university's right to impose discipline for off-campus misconduct have
involved criminal misconduct. The institution's right to discipline such
conduct has been upheld in all such cases, even if the university's rule
were held invalid for other constitutional violations. For example, in
Krasnow v. Virginia Polytechnic Institute, a student was placed on
probation by a state court for unlawful possession of marijuana. The
university then disciplined the student for violating a university rule
prohibiting the "unlawful use or possession of drugs whether or not on
university property." The Court of Appeals for the Fourth Circuit
upheld the university's rule and disciplinary action, finding that "the
university clearly has the prerogative to determine that any unlawful
possession of drugs or criminal conduct on the part of students is
detrimental to the university." 551 F.2d at 592.

 The United States District Court for the District of Maryland also

upheld the dismissal of a pharmacy student from the University of
Maryland School of Pharmacy for drug-related offenses. Sohmer v.
Kinnard, 535 F. Supp. 50 (D. Md. 1982). The University's
disciplinary committee found that the student, while functioning as an
extern, had been impaired by the improper use of two prescription
drugs and had illegally possessed cocaine. He was dismissed pursuant
to a University rule stating that students whose actions are judged to be
detrimental to the interests of the University community may be
required to withdraw. The court upheld the rule and the dismissal,
finding that "the illegal use and possession of narcotic drugs would
violate the law and the Code of Ethics of his profession and would
therefore be detrimental to the interests of the University." 535 F.
Supp. at 54. With respect to the University's interests, the court also
noted that:

       The School [of Pharmacy's] reputation and its
     ability to place students in clinical externships would
     be seriously jeopardized if the Court intervened and
     prevented the School from disciplining a student who
     has admitted that he has used a narcotic drug without

     a prescription and that he has had cocaine in his
     possession.

535 F. Supp. at 53. See also Paine v. Board of Regents of the
University of Texas System, 355 F. Supp. 199 (W.D. Tex. 1972), affd
per curiam 474 F.2d 1397 (5th Cir. 1973) (commenting that regents
may suspend or expel any student drug or narcotic offender who
demonstrably poses a threat to other students, but finding this school
regulation unconstitutional on other grounds); Wallace v. Florida A &
M University, 433 So. 2d 600 (Fla. App. 1983) (upholding expulsion
on ground that student was convicted of crime of intent to distribute
cocaine, because student's conduct interfered with the operation of the
university and also endangered the health and safety of other students
and other members of the academic community).

 Courts have also affirmed the authority of public universities to

discipline students for types of criminal misconduct other than drug-
related offenses. For example, one court upheld a public university's
suspension based on a state court finding that the student was in
criminal contempt of court. Due v. Florida Agricultural and
Mechanical University, 233 F. Supp. 396 (N.D. Fla. 1963). In Due,
the court also upheld the university's rule providing that disciplinary
action will be taken against students for misconduct while on or off
campus, including conviction by university officials, city, county or
federal police for violation of civil or criminal laws. In Cornette v.
Aldridge, 408 S.W.2d 935 (Tex. Civ. App. 1966), a state court upheld
a student's suspension for reckless driving that occurred off campus but
that also violated campus rules against "irresponsible behavior" on or
off campus.

 Courts have applied the same standard to uphold universities'

disciplinary action for off-campus misconduct that violated university
rules, even though the conduct was not criminal in nature. For
example, in Kusnir v. Leach, 64 Pa. Cmwlth. 65, 439 A.2d 223
(1982), a student was suspended for crashing an off campus party,
refusing to leave when requested to do so, and engaging in disruptive
behavior in violation of the college's rules against behavior like assault,
harassment, personal abuse, and trespass. The court upheld the
suspension: "Obviously, a college has a vital interest in the character
of its students, and may regard off-campus behavior as a reflection of
a student's character and his fitness to be a member of the student

body." 439 A.2d at 226. In Esteban v. Central Missouri State
College, 415 F.2d 1077 (8th Cir. 1969), the suspensions of two
students who participated in demonstrations on a public street adjacent
to the college campus were upheld as violating a school rule prohibiting
mass demonstrations. The Eighth Circuit agreed with "those courts
which have held that a school has inherent authority to maintain order
and to discipline students....[and] has latitude and discretion in its
formulation of rules and regulations and of general standards of
conduct." 415 F.2d at 1088 (citations omitted).

 In numerous other cases, student suspensions and expulsions for participation

in protests and demonstrations have been challenged. Virtually all of those cases
involve conduct that occurred on campus. See Annotation, 32 A.L.R.3d 864 (1970).
Since those cases do not address a public institution's authority to discipline students
for off campus misconduct, they are not directly applicable to your question.

 In summary, the case law establishes that it is constitutionally

permissible for a public college or university to impose disciplinary
sanctions on students for misconduct that occurs off-campus. Any
statute or university rule authorizing an institution to sanction such
conduct, however, must limit disciplinary actions to misconduct that is
detrimental to the institution's interests.

                               III

        Constitutional Limitations on Disciplinary Action

An educational institution may discipline its students for prohibited

conduct, whether it occurs on campus or off, "so long as there is no
invidious discrimination, no deprival of due process, no abridgement
of a right protected in the circumstances, and no capricious, clearly
unreasonable or unlawful action employed ...." General Order on
Judicial Standards, 45 F.R.D. at 141.7

Any disciplinary action by a public university must meet several

basic constitutional requirements. First, the action must be based on
existing rules or regulations that are reasonably clear, so that students

 7
   As the court pointed out: "It is not a lawful mission, process, or function of

an institution to prohibit the exercise of a right guaranteed by the Constitution or a
law of the United States to a member of the academic community in the
circumstances. Therefore, such prohibitions are not reasonably relevant to any lawful
mission, process or function of an institution." 45 F.R.D. at 145.

can understand the standards with which their conduct must comply and
disciplinarians can enforce them fairly.8 A rule that fails to meet this
standard may be declared void for vagueness under the Fourteenth
Amendment of the United States Constitution. See Sword v. Fox, 446
F.2d 1091 (4th Cir. 1971) (upholding regulation that "conveys
sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices"); Soglin v.
Kauffman, 418 F.2d 163 (7th Cir. 1969) (finding rule prohibiting
"misconduct" unconstitutionally vague). A public institution's code of
conduct must also comply with the constitutional doctrine of
overbreadth in any area where it could affect First Amendment speech
rights; in those instances, the rule must be narrowly tailored to serve
a significant governmental interest. Grayned v. Rockford, 408 U.S.
104, 115 (1972).

 A code of student conduct may not arbitrarily discriminate in the

range and type of penalties or in the procedural safeguards afforded
various classes of offenders. For example, in Paine v. Board of
Regents of the University of Texas System, 355 F. Supp. 199 (W.D.
Tex. 1972), affd per curiam, 474 F.2d 1397 (5th Cir. 1973), the court
held that the university's practice of affording all students charged with
violating university rules a full hearing, except students who were
finally convicted of or placed on probation for a drug offense (who
were automatically suspended), violated the Equal Protection Clause of
the Fourteenth Amendment. Thus, a public university should follow
the same procedures and consider the same penalties for disciplining
students for off-campus misconduct as for similar on-campus
misconduct. In addition, a university's disciplinary action must meet
the constitutional requirements for due process under the Fourteenth
Amendment, including notice to the student and an opportunity to be
heard that is appropriate to the nature of the case. See, e. g., Goss v.
Lopez, 419 U.S. 565 (1975); Dixon v. Alabama State Board of
Education, 294 F.2d 150 (5th Cir. 1961).

Finally, disciplinary action for student conduct may not violate

specific guarantees of the Bill of Rights of the United States
Constitution as made applicable to state institutions by the Fourteenth

 8
   Many institutions have created written codes of conduct for student behavior,

as the University of Maryland College Park has, to insure that students receive
sufficient notice of expected behavior.

Amendment. This limitation has been tested most frequently in cases
where students contend that a university rule, or the application of a
rule, violates the free speech and press clauses of the First
Amendment. University rules relating to speech activities may place
reasonable limits on the time, place, and manner of protected speech,
but not on its content. See, e.g., Papish v. Board of Curators of the
University of Missouri, 410 U.S. 667 (1973); Healy v. James, 408
U.S. 169 (1972).

                                IV

                           Conclusion

 The cases we have reviewed are revealing in several respects.

They not only provide ample authority for public universities to
regulate off-campus student misconduct - and illustrate the types of
misbehavior that have been construed as being "detrimental" to the
university's interests (e.g., drug offenses, assault, harassing and
disruptive conduct) - but also stipulate the constitutional safeguards that
must be afforded. We emphasize, however, that it is a policy judgment
for the Board of Regents or the General Assembly whether UMCP or
other institutions within the University of Maryland System should be
obligated to monitor and discipline off-campus student misconduct or
whether the University should continue to defer to the conventional
criminal and civil processes. Moreover, should such authority be
expanded, discretion should be reserved to campus officials to
determine whether specific instances of off-campus misconduct are
deemed detrimental to the University's interests so as to warrant
disciplinary action, in addition to or in lieu of criminal proceedings.9

 9
   The Double Jeopardy Clause of the United States Constitution does not protect

students from being subjected to both criminal prosecution and a civil disciplinary
proceeding. See e.g., General Order on Judicial Standards, 45 F.R.D. 133, 142
(W.D. Mo. 1968); Paine v. Board of Regents of University of Texas System, 355
F.Supp. 199, 203 (W.D. Tex. 1972), aff'd, 474 F.2d 1397 (5th Cir. 1973). A
university may proceed with a disciplinary hearing before the criminal charges are
resolved. See Wimmer v. Lehman, 705 F.2d 1402, 1406-07 (4th Cir. 1983). Due
process requires that a student facing related criminal charges be allowed counsel at
the disciplinary hearing for the limited purpose of advice and consultation, but not
necessarily to examine or cross-examine witnesses. 705 F.2d at 1404-05. The
student may also be entitled to assert the Fifth Amendment privilege against self-
incrimination to exclude his testimony from a subsequent criminal proceeding if the
student is required to testify at the disciplinary hearing or if his refusal to testify may

In summary, it is our opinion that a State college or university may

discipline a student for off-campus conduct that impairs the interests of
the institution, so long as the student is afforded sufficient procedural
protections, is not subject to arbitrary discrimination, and is not
disciplined for the exercise of a protected constitutional right.

                                                J. Joseph Curran, Jr.
                                                Attorney General

                                                Caroline E. Emerson
                                                Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice

 9
 (...continued)

be used against him. See e.g., Hart v. Ferris State College, 557 F.Supp. 1379, 1384-
85 (W.D. Mich. 1983); Furutani v. Ewigleben, 297 F.Supp. 1163, 1165 (N.D. Cal.
1969).