Students Accused Of Breaking College COVID-19 Rules Fight Their Punishments

Sep 17, 2020
Originally published on September 17, 2020 7:52 pm

As colleges around the U.S. are facing COVID-19 outbreaks and crackdowns on students engaged in coronavirus-risky behavior, campuses are also facing a new threat: legal challenges from the students they're punishing.

Some are brazenly breaking rules, like the hundreds of Syracuse University students who risked everyone's safety — and everyone's semester — by partying like it's not 2020 in late August. Twenty-three students at that party got interim suspensions and were kicked off campus for what Syracuse officials described as "incredibly reckless behavior."

The same thing is happening to students at smaller, more "chill" gatherings. At Northeastern University, 11 students were caught hanging out together in one room, in violation of bans on having guests in campus housing and on participating in crowded gatherings.

"I was just, like, come on — that's really irresponsible and selfish," junior Avery Collard said about the students who were all kicked off campus and out of their program for the semester. Collard said they had it coming.

"There's very specific rules that say you can't do that," she said. "[They're] adults. I know it's hard, but act like it!"

But for all the scorn directed at students who flout the rules, the colleges meting out the discipline are taking heat as well. Rhyia Bibby, a junior at Northeastern, is one of many on campus who think the university went too far by also refusing to refund the students' tuition, which amounts to $36,500 per person.

"I think there are other ways to send a message than to take $36,000 away from incoming students," Bibby said. "I also think it's important that in freshman year, a bit of grace can be given."

Attorney Brett Joshpe, who appealed the suspension for two of the students, agrees.

"This is just a spiteful, gratuitous, grossly disproportionate penalty," he said, for students who were "just watching a basketball game with friends, with masks on."

Northeastern refused to budge on the suspensions but on Thursday notified the students that part of the money they lost could be applied to future tuition, if the students choose to return. University officials declined to comment on the case beyond their initial written statement saying that the students were repeatedly warned of the rules and the consequences. Joshpe called the university's response "totally unacceptable" and said his clients will be "evaluating all options."

Northeastern is hardly the only school whose tough disciplinary actions are under scrutiny. Attorneys say their phones haven't stopped ringing, and they've been hired to help students fight sanctions at other schools, from Syracuse University to New York University, Boston College, Penn State and many more.

"This has gone from a few cases here and there to a near epidemic," said attorney Andrew Miltenberg. He has long represented students accused of sexual assault, making the case that those alleged sexual predators were victims of a rush to judgment. Now, he says, schools are doing the same thing to alleged superspreaders.

"They're not allowing any discussion or any mitigating circumstances. People are being summarily suspended, and there is no due process," Miltenberg said.

"Schools are taking a suspend first, expel first, and ask questions later stance," said Will Creeley, senior vice president of legal and public advocacy with the Foundation for Individual Rights in Education, a civil rights advocacy group. Creeley said he's also getting multiple calls a day.

"We wonder if in a desire to continue collecting full tuition here, the students are set up to be the fall people here and they're being held to an impossible standard," he said.

For their part, schools insist that students do get due process — it just sometimes comes after the fact.

"These are different times, and we've got to make some emergency decisions based upon the facts available so that we can make sure other students are not at risk," said Kenneth Elmore, associate provost and dean of students at Boston University. Two groups of students recently got "deferred suspensions" for gatherings in dorm rooms, which is a kind of probation that puts them "one more bad act away" from being automatically kicked out, Elmore said. Those cases are still under review, but Elmore said, "That's pretty serious from our standpoint."

"For us, having six to eight people in less than 200 square feet is highly problematic," Elmore said. "And especially if those folks aren't face-covering. Sometimes people are going to make bad judgments, and we're going to have to, in those cases, be unforgiving."

But defense attorneys say investigations after the fact are often too late. In many cases, Miltenberg said, the damage is already done to students and their reputations, especially those students suspended for more questionable violations.

For example, Miltenberg said, he is representing one student who was suspended after he walked into his dorm's bathroom, not realizing that he was the seventh guy there and that he was putting the bathroom space one man over capacity. It was an accident, Miltenberg said; should students be expected to peek under the stalls and count feet?

"Students are truly bewildered. Can you take a shower? Can you use the toilet? It's all very vague," he said.

Boston University's Elmore concedes that making the call in certain cases can be difficult and that colleges are still figuring things out, just as students are. By nature, Elmore said, he's more the "moral suasion" type than a "drop the hammer" kind of guy. But, these are not normal times.

"I mean, personally this is really difficult for me," he said. "And I know it sounds weird coming from the person who is the apparent executioner, but we've got to do it. It's a way to say: No, we are serious about this."

But Elmore agrees that as schools become COVID-19 cops, they need to be extra-careful. With complaints already piling up about unduly harsh punishments, there are also concerns about uneven enforcement.

Darnell Cole, associate professor of higher education, administration and educational psychology at the University of Southern California, is recommending that schools closely monitor demographic data on their COVID-19 discipline cases.

"Those biases that exist external to the institution also exist within the institution, whether intended or not," said Cole. "I think we just know that, and we have to make sure we have equitable treatment that isn't racially discriminatory or biased or sexist."

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SACHA PFEIFFER, HOST:

As COVID outbreaks are popping up at colleges, campuses are cracking down on students violating COVID prevention rules. And colleges face another threat - legal challenges from the students they're punishing. NPR's Tovia Smith reports.

TOVIA SMITH, BYLINE: Some of the misconduct is brazen, like the hundreds of Syracuse University students who risked everyone's safety and everyone's semester by partying like it's not 2020.

(SOUNDBITE OF PARTY AMBIENCE)

SMITH: Twenty-three students at that party were kicked out, and the same thing's happening to students in smaller, more chill gatherings - for example, 11 Northeastern University students who were caught hanging out together in one room, violating bans on crowded gatherings and on guests in student rooms.

AVERY COLLARD: I was just like, come on. That's really irresponsible and selfish.

SMITH: Many on campus, like junior Avery Collard, say those students, who were all kicked out for the semester, had it coming.

COLLARD: There's very specific rules that say you can't do that. So, you know, you're adults. It's - I know it's hard, but, like, act like it.

SMITH: But others on campus, like junior Rhyia Bibby, take issue with the university, too, for not only booting the offenders off campus but also refusing to refund their tuition.

RHYIA BIBBY: I think there are other ways to send a message than to take $36,000 away from incoming students. I also think it's important that, in your freshman year, like, a bit of grace can be given.

BRETT JOSHPE: This is just a spiteful, gratuitous, grossly disproportionate penalty.

SMITH: Attorney Brett Joshpe appealed the suspension for two of the students, who he says were just watching a basketball game with masks on. Northeastern refused to budge on the suspensions but today told students that part of the money they lost can be applied to future tuition. Officials declined to comment beyond their initial statement that the students were repeatedly warned of the rules and the consequences. It's hardly the only school whose tough disciplinary actions are under scrutiny. Attorneys say their phones haven't stopped ringing.

ANDREW MILTENBERG: This has gone from a few cases here and there to a near-epidemic.

SMITH: Attorney Andrew Miltenberg has long represented students accused of sexual assault, arguing that those alleged sexual predators were victims of a rush to judgment. Schools, he says, are now doing the same thing to alleged super-spreaders.

MILTENBERG: They're not allowing any discussion, any mitigating circumstances. People are being summarily suspended, and there is no due process.

WILL CREELEY: Schools are taking a suspend first, expel first, ask questions later stance.

SMITH: Will Creeley with the Foundation for Individual Rights in Education, a civil rights group, says he's also getting multiple calls a day.

CREELEY: We wonder if, in a desire to continue collecting full tuition, that maybe students have been set up to be the fall people here. And they're being held to basically an impossible standard.

SMITH: But schools insist students do get due process. It just sometimes comes after the fact. Kenneth Elmore is dean of students at Boston University, where multiple suspensions are being reviewed.

KENNETH ELMORE: These are different times, and we've got to make some emergency decisions based upon the facts available so that we can make sure that other people aren't at risk.

SMITH: But when investigations are done after the fact, Miltenberg says the damage is often already done to students and their reputations, especially in cases of what he calls more questionable violations. For example, he represents one student who walked into his dorm's bathroom not realizing he was the seventh guy there, and he was putting the bathroom space one man over capacity. It was an accident, Miltenberg says. Should students be expected to peek under the stalls and count feet?

MILTENBERG: Students are truly bewildered. Can you take a shower? Can you use the toilet? It's all very vague.

ELMORE: I understand this is hard stuff.

SMITH: BU's dean Elmore concedes that schools are still figuring things out as they go. Normally, he says, he's more the moral suasion type than the drop-the-hammer kind of guy, but these are not normal times.

ELMORE: I mean, personally, this is really difficult for me. And I know it sounds weird coming from the person who is the apparent executioner, but we got to do it. And it's a way to say, no, we are serious about this.

SMITH: It's a steep learning curve for both administrators and students, he says. And the stakes are high either way - if schools get it wrong or if students do.

Tovia Smith, NPR News, Boston.

(SOUNDBITE OF BLOCKHEAD SONG, "FAREWELL SPACEMAN") Transcript provided by NPR, Copyright NPR.