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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: February 6, 2013

HOW HARVARD UNIVERSITY AND OTHER SCHOOLS DEAL WITH ALLEGATIONS OF WRONGDOING AND CAMPUS CRIMES

We began this week talking about Massachusetts campus crimes and offenses and how they were handled in two particular incidents.

In both cases, people have raised the question of whether the punishments were fair.
In one of the cases, those punished have actually brought a civil lawsuit against the school claiming that the punishment was not fair and they were not guilty to begin with.

Despite what the breathalyzer might have said.

If you have no involvement in either of these two cases, you might be wondering why we are talking about it in a criminal law blog.

Let's see if I can't answer that question...


Attorney Sam’s Take On School Accusation, Punishment And The Scholastic Record

First of all, although neither of these cases have been pursued in criminal court, one of them at least could have been. That would be the girls accused of drinking. Given that they are high school students, I am going to take a wild guess and assume that they are under the age of 21 years old.

To accuse them of drinking alcohol is to accuse them of committing a crime. Therefore, the school could have called the police at the time they were posted from the dance.

"Well Sam, they were suspended. That went on this school record. Isn't that just as bad?"

I would say that better get it on the school record than get it on the school record plus a Cori.

In the case of Harvard University, though students also will have the disciplinary action reflected on their scholastic record. In short, in both cases the scholastic record is affected.

Also, in both cases there seem to be viable arguments as to why those accused might not be worthy of such extreme punishment. In the high school case, the girls claimed that they had not been drinking. Those of you who have any experience with drunken-driving cases where a breathalyzer is used know that there is significant question as to whether such breathalyzers are reliable. At the very least, The machine has to be set up and tested correctly. We do not know if that was done at the high school. Since criminal charges were not brought, the high school has never had to, nor are they likely to have to, establish the working breathalyzer.

In the case of Harvard University's cheating scandal, there seems to be significant question as to whether the students knew that they were going beyond collaborating and actually entering into the land of cheating. This is apparently not a case of one student sitting next to another student during an exam and copying the other students answers. The situation is more subtle than that.

When it comes to pursuing allegations of wrongdoing, those doing the investigation seldom like to indulge the need to look at look at the subtleties. Particularly in matters where there are not certain safeguards, as in the criminal courts, the powers that be are more comfortable with simply bringing forth the allegations and then going right to punishment after , in some cases cases, having a tribunal which gives a new meaning to the term "kangaroo court".

There is something in common between the criminal justice system and the school system when it comes to punishment. Those acting as prosecutors do not want to be seen as being "soft" on wrongdoers. In the Harvard University matter, the media found out about the scandal and so many public eyes were focused on Harvard University and what they would do.

Clearly, the action taken had to be harsh.

It is interesting, however, that not all the students were treated the same. One can only hope this depended upon each student's culpability and, perhaps even, the subtleties of their particular situations. Forgive me if I am not terribly optimistic that that's what it came down to.

Now, we usually talk about crimes. Whether the defendants are juveniles or adults, we discuss what the criminal justice system or juvenile justice system does with those accused. In this case neither court system has been utilized. So, you might be wondering what the big deal is.

The "big deal" Is obviously the scholastic record.

Being suspended or expelled is a big deal. It reflects extremely poorly on the scholastic record. The kids involved in both cases are in the position of needing to apply to either higher education or jobs. The scarlet letters that the institutions brand onto the school record for the students will make such a future quite difficult.

We have many times discussed this problem in terms of the CORI. In other words, once someone is accused, juvenile or adult, the accusation goes on their criminal record. Thereafter, regardless of what happens to the case, the incident will be a red flag for all future endeavors.

Now, we might discuss whether or not such a punishment which has such a lasting effect should necessitate a more formal investigation and hearing, perhaps even with some of those constitutional safeguards that we bad people (Criminal defense attorneys) Insist upon in the criminal courts.

We will not be having that debate here today.

Rather, the point is to bring your attention to the risks faced by students who have lapses of judgment. Or believed to have lapses of judgment.

The effects of such suspicion can quite literally ruin those students lives.

This is why it is so important for you, if you or a child of yours is in the situation, Do everything you can to protect that child. That, in my opinion, would necessitate the prompt retention of a criminal defense attorney to render whatever help is possible.

"Sam, don't many of these institutions forbid attorneys from participating in the actual hearings?"

Unfortunately, yes. Many of the schools would prefer to simply roast the child on a stick with no one around to help him or her. However, that is not always the case and, in any event, the attorney can help prepare the child for the hearing and whatever written submission the student is going to bring.