Representing University Students in “1219” Disciplinary Proceedings

In 1970, in the tragedy at Kent State University took the lives of 4 students. Subsequent campus protests at The Ohio State University and Ohio University created a groundswell of public support for the legislature to clamp down on “dissidents” and “radicals” on Ohio’s campuses. Between May 8, 1970 and May 27, 1970, fourteen “get tough” bills were introduced in the Ohio General Assembly targeting Ohio’s public university students. H.B. 1219 was the bill that became law after wrangling between the House and Senate. It became law under an emergency order by the Governor less than 30 days after it was introduced. 42 years later, most of it has survived appellate scrutiny and, in fact, it has grown.

Because HB 1219 was placed outside the criminal code and placed inside the civil code of Education Law, Ohio college students were stripped of many constitutionally protected rights. The State of Ohio could now punish its citizen-student swiftly (in less than 10 days from the alleged offense), with little notice (suspension immediate), very little procedural due process, a watered down burden of proof (“preponderance of evidence”), and an automatic expulsion if found guilty of one of the “trigger offenses” [discussed below]. A 1219 violation and 1219 hearing may start and end before the accused student has even had a chance to consult with counsel, review the State’s evidence, or develop possible defenses or mitigation. In fact, even though a student may have a lawyer present, the lawyer cannot participate in the process.

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Then there is the sizable problem of being tried twice by the State of Ohio for the same offense (“Double Jeopardy”). Because university proceedings are administrative and not criminal, jeopardy does not apply. However, when expulsion is mandatory from the university, there is nothing non-punitive about that at the hands of the State. Call it what you want, a 1219 proceeding is more criminal hearing than civil and the penalty is the equivalent of the death penalty for a student. Nonetheless, the Courts have not seen it that way and continue to rule in favor of the State and universities.

So, what are these Death Penalty-cum-expulsion offenses in Ohio? They are offenses found in Ohio R.C. 2901.01(9)(A)**

Homicide

Assaults

Kidnapping

Extortion

Sex Offenses

Arson

Robbery

Burglary

Inciting Violence / Rioting / Inducing Panic

Domestic Violence

Witness Intimidation / Intimidating of Court Officials

Escape

Discharging a Firearm on / near campus

**Each student’s criminal complaint must be reviewed and specifically checked against R.C. 2901.01(9)(A) because exceptions do apply.

Once arrested for a 1219 “trigger offense”, the following sequence of events will occur:

A hearing must be held no later than 10 days after the alleged offense

If the hearing board finds “by a preponderance of evidence” that the student committed the trigger offense, the student will be immediately suspended.

However, pursuant to R.C. 3345.22(F) there is this: “Upon acquittal, or upon any final judicial determination not resulting in conviction, of the charges for which a person is suspended pursuant to this section, the
suspension automatically terminates, and the person suspended shall be reinstated and the record of the
suspension expunged from the person’s college or university record.

Yet, if the student gets convicted in the criminal court of the triggering offense, R.C. 3345.23 (B) kicks in:

“Upon conviction of a student. . . the court shall immediately notify the college or university of such conviction. The president, or other administrative official designated by the board of trustees, shall immediately notify such person of the person’s dismissal. The notice shall be in writing and shall be mailed by certified mail to the person’s address as shown in both the court and the university records.”

The strategy for the student’s criminal defense lawyer is pretty clear – as quickly as possible (preferably before the 1219 hearing itself), find a way to have the offense(s) amended to a non-1219 violation to avoid the mandatory suspension and expulsion.

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It is my experience that few prosecutor’s are aware of 1219 Proceedings despite the fact that they prosecute many university students annually for 1219 violations. If a prosecutor feels that the case is eventually subject to reduction of charges, counsel will be wise to push that as quickly as possible. The University will not wait for the criminal case to conclude.