AMSA ADVOCACY GUIDE
Understanding and Preserving Your Student Rights

A Handbook Compiled by the American Medical Student Association Advocacy Board
Updated May 2005 by Leana S. Wen, 2005-2006 AMSA National President

WHAT IS THE ADVOCACY BOARD?

Created by the will of AMSA membership through a resolution in the House of Delegates, the Advocacy Board is composed of the National President; the Director of Student Programming; an at-Large member of the Board of Trustees; the Advocacy Action Committee Chair; and the Senior Coordinators of each of the Advocacy Subcommittees-Lesbian, Gay, Bisexual and Transgender People in Medicine (LGBTPM), Women In Medicine (WIM), Minority Affairs Committee (MAC), and the Committee on Disabilities (COD).

The Advocacy Board has compiled this manual in order to help medical students be informed of their rights and additional resources. In addition, this manual is intended to help prevent the violation of students' rights and to facilitate a medical student's journey through the maze of disciplinary actions, should they occur.

AMSA POLICY REGARDING MEDICAL STUDENT RIGHTS

According to AMSA's Preambles, Purposes, and Principles (PPP), AMSA:

URGES schools to publicize clearly, in readily accessible catalogues, student handbooks, etc all policies and procedures concerning both academic performance and nonacademic disciplinary decisions including, but not limited to, the following:

1. rules for conduct of students, faculty and staff, including criteria justifying nonacademic dismissal;
2. a clear definition of its procedures for evaluation, advancement and graduation of students, specifying criteria that justify academic dismissal;
3. a clear delineation of what the school interprets to be the distinctions between academic and nonacademic criteria;
4. all procedures of due process and appeal;

BELIEVES that proceedings can be initiated against a student only when the charges concern a violation of written standard of conduct. The expulsion or suspension of a student for academic reasons is without justification where the school has not, early in the course of instruction, clarified in writing those standards of academic performance and behavior that it considers essential to the integrity of its educational mission (i.e. passing). Students close to academic termination should be advised, well in advance, drawing attention to the specific deficiencies;

BELIEVES that severance from school, including any "leave of absence" where the student is not allowed to return to school when ready to do so, is effectively a suspension. Where the separation is effectively permanent, regardless of what it may be termed, it is an expulsion. The forced imposition of any extended leave of absence from medical school results in irreparable lifetime harm to a student, and deserves the same degree of due process that is required in serious civil or criminal proceedings. The student has the absolute right to attend classes until a hearing is held to decide otherwise.

BELIEVES that violation of a law need not imply professionally unethical behavior, proof of guild should not excuse a school from its obligation to provide a fair, impartial hearing for the accused;

BELIEVES that when a faculty member or the relevant committee believes that a student has demonstrated a deficit or violated a rule, an informal hearing may be held in the presence of an impartial third party;

URGES that medical schools follow these guidelines in developing procedures for formal hearing committees regarding both academic and nonacademic alleged violations:

1. It is an essential aspect of due process that a student be notified, through timely and progressive notification, that the case is being considered. The formal notice should satisfy, at minimum, the following criteria:
   1. List the exact charges, citing the specific, published regulations, codes or bylaws that have allegedly been violated;
   2. Outline the action that will be taken if the charges are supported;
   3. Identify all adverse witnesses, if applicable, and outline the facts to which each will testify; this information must be available upon request by the student;
   4. Inform the student of the right to a formal, impartial, and objective hearing;
   5. Inform the student of the right to appeal the outcome of any hearing, ultimately to a court of law;
   6. Inform the student of the right to be represented by an advisor of choice, or by legal counsel, at every stage of the proceedings, and prior to responding to any charges;
   7. Inform the student of the right to not self-incriminate;
   8. Indicate the time and place of the hearing and how to get there, if the location is not known to the student;
   9. Inform the student of the right to request a reasonable postponement of the hearing date for due cause;
   10. Include a copy of the school's:
       • due process procedures;
       • code of conduct or academic regulations;
       • hearing procedures;
       • formal hearing appeal process;
       • policy with regard to student records
   11. Describe the composition of the judicial body responsible for hearing the case;
2. The burden of proof rests with the party bringing the charges. All matters upon which a decision may be based should be introduced into evidence at the hearing. Any recommendations resulting from the heating should be based solely upon the legal rules and evidence introduced at the hearing. The party bringing the charges should present all evidence in its entirety before the accused is called to testify;
3. Consideration of evidence will be allowed when the accused has:
   1. been previously advised of their content;
   2. been previously advised as to who made them;
   3. the full opportunity to refute unfavorable inferences drawn as a result of such statements.
4. The student has the full right to:
   1. testify and present a defense;
   2. produce oral or written affidavits and evidence on his/her behalf;
   3. present witnesses
   4. raise questions at a hearing concerning the inherent fairness of any rule or regulation he/she is accused of violating.
5. The hearing must be held before the entire body that will decide the issue. Any and all individuals sitting in judgment of an accused student must be free from conflict of interest or personal involvement. It is a student's right to have a panel that is acceptable to him/her as well as to the school
6. The hearing should be private unless the student requests otherwise. News media should not be permitted at the hearing unless their hearing is agreed upon by the student and the school;
7. The hearing should be scheduled such that the student has sufficient time to consult with advisors and prepare a defense;
8. The student has a right to a written statement of any decision and the grounds upon which it is based. The student should be advised again, at that time, of the right to appeal and the appeal process.

For the most up-to-date version of our Principles, please see our PPP.

WHAT ARE YOUR STUDENTS' RIGHTS?

Several mechanisms are in place to protect students' rights, and since the inception of the Advocacy Board, additional safeguards have been instituted to prevent their violation. The three major mechanisms established to protect students' rights are:

1. Medical school policies regarding evaluation and discipline as stated in the school's policy handbook;
2. Accreditation standards set by the Liaison Council for Medical Education (LCME);
3. Federal and State laws.

The Bulletin/Handbook
It is most important to realize that the best information regarding your student rights is in one of your medical school's publications. Usually this is referred to as the school's handbook or bulletin. Therefore, you must acquire such a handbook. In the old days, you had to do this from your school's Office of Student Affairs or Registrar. Now, almost every school has their handbook available online. Carefully read the sections on academic policies and become familiar with those policies. The policies may be located in different sections. For example, the policies regarding discrimination may be in one location; policies regarding disciplinary action in another; policies regarding accommodations for disabled students in yet another. Find the sections you are concerned about and mark them. Make note of special customs your school may have, such as an Honors Council or a student-appointed group that conducts disciplinary hearings. Often if the government does not fund a school, your rights are limited to what appears in the bulletin. The LCME has created a formal policy for all schools to publish their bulletins and make them publicly available.

LCME
The Liaison Committee on Medical Education (LCME) is the main accrediting body of medical schools in the United States, and is cosponsored by the AMA (American Medical Association) and the AAMC (American Association of Medical Colleges). This organization is concerned with irregularities in academics, curriculum and disciplinary action. When outright violations of established rights occur, students may petition the LCME to investigate a school pending its accreditation renewal. The LCME adopted the following policy in 1974 which applies to all institutions seeking LCME accreditation:

A medical school should develop and publicize to its faculty and students a clear definition of its procedures for the evaluation, advancement and graduation of students. Principles of fairness and due process must apply when considering actions of the faculty or administration, which will adversely affect the student and deprive him of valuable rights.

This policy grants the student:

1. The right to know the procedures regarding the evaluation and advancement to graduation (LCME, 1974), and
2. The right to know the procedures regarding allegations that are non-academic or disciplinary in content (LCME, 1974).

State and Federal Law
There exist a number of student rights as set forth by the federal government in Title 20 of the U.S. Code and landmark cases in law. Title 20 of the U.S. Code enables the federal government to mandate certain rights to students in government-funded institutions. Thus, if there are violations by a particular institution to the regulations stated in this code, the federal government is able to restrict funding to that institution. The following is included in Title 20 of the U.S. Code:

1. The right to review all educational records, including any evidence against the student.
   
   Yes, YOU have a right to review all evidence used against you! So please review the evidence! At any point during a disciplinary hearing, or conduct hearing, or other proceeding against you, you may ask to see your records. What are some exceptions? Letters of recommendation are exempt from this requirement if the student waived the right to inspect them and they are being used solely for the purpose for which they were specifically intended, such as the residency match. Also, when seeking admission to another educational facility, the transfer of your educational records does not require your consent. Otherwise, REVIEW YOUR RECORDS!
   
   
2. The right to a list of all those with access to the student's records.
   
   
3. The right to insert written explanations concerning the content of the educational record, including making corrections to inaccurate records. If you saw something inaccurate in the records, including allegations against you, you have a right to make a written statement to explain the content of the record.
   
   
4. 4. The right to a hearing to challenge the contents of the educational file.
   
   A hearing is part of due process and fair play. You are entitled to a hearing, and your student code should have protocols set for how such a hearing is conducted.
   
   
5. The right to refuse a psychiatric or psychological examination if it is believed that the results may be used against the student.
   
   No student shall be required to submit to psychiatric examination, testing or treatment... to reveal information concerning political affiliations, mental and psychological problems potentially embarrassing to the student, sexual behavior and attitudes, illegal, anti-social, self-incriminating and demeaning behavior, or critical appraisals of other individuals with whom respondents have close family relationships. [Title 20 of the U.S. Code]

Case Law.
As a result of the 1961 landmark case Dixon v. Alabama State Board of Education, students in federally funded colleges and universities are guaranteed:

The right to notice and hearing prior to suspension or expulsion.

However, the above was modified as a result of the 1978 case of the Board of Curators of the University of Missouri v. Horowitz to include only those cases involving allegations of non-academic (for example conduct) dismissals and only those academic decisions when the schools actions are clearly in bad faith or otherwise an abuse of discretion. Clearly, if an allegation does not concern academic performance and the institution is state funded, you are entitled to a hearing.

Limitations of Rights:

1. Academic Performance. A student may be disciplined for poor academic performance (i.e. failing clerkships, the USMLE, etc.) without a hearing or even an opportunity for the student to challenge the action. Schools should and typically do have set guidelines for what they consider to be failing academic performances; be sure to research this ahead of time. The only cases in which the courts may intervene in academic decisions are those in which the school's action has been clearly in bad faith or otherwise is an abuse of discretion.
2. Right to Counsel. There is no guarantee that you should have a counsel, whether it is a faculty member or professional counsel, in your school conduct hearings. Some schools have an "honors council" or specifically prohibit legal representation. Similarly, there is no guarantee that students should be included in your evaluation, appeal, cross-examination, etc. However, this right may be granted by contract. Again, this speaks to your being aware of YOUR school's particular rules.
3. Losing Your Rights. There are ways that you can lose your rights, particularly your right to a hearing. This can occur if you are absent from any scheduled appearance for which you have been notified. Note that the granting of any request for a hearing postponement should not be considered confirmed until the student has the change documented in writing.

Specific to Privately Funded Institutions
Even if your school does not receive any funding from the state or federal government, it is still required to follow the terms of due process *(see bottom) and its actions are still at the discretion of the LCME. Therefore, the school still must follow basic procedures of due process because they are aware that a student may petition the LCME to investigate a school. If the school is found to be in violation of the standards set by the LCME, then that school can be denied re-accreditation.

*Due Process. The Constitution's Fifth and Fourteenth Amendments express that neither the state nor federal governments shall deprive any person of life, liberty, or property, without due process of the law. (In the case of a medical student. liberty refers to freedom to pursue the occupation of one's choice and property refers to the expectation of graduating medical school and obtaining a medical degree). Due process has been categorized as one of two types: procedural and substantive. Procedural due process requires that your school follow its own federal policies. Substantive due process assesses whether the policies are fair.

WHAT IF YOUR RIGHTS ARE VIOLATED?

First, do not panic. Think carefully! Consider the situation, and try to recall the events prior to the allegation. Your first job is to try and discover the basis of the allegation(s). You must document all allegations as carefully as possible (see below for suggestions)! Determine what is the school's intended action in response to your alleged violation(s) (i.e. suspension, dismissal, or remedial work). Determine whether the allegation is academic or disciplinary in nature since this will greatly affect your rights in the situation.

Next, begin collecting information. Remember, the school is compelled to provide you with at least the following information:

1. The specific code of conduct that was violated.
2. The action that will be taken by the school should those charges be found to be accurate.
3. What must be proven to justify expulsion, suspension and/or other disciplinary action.
4. The time and place of hearing.
5. Who is allowed at the hearing; and other protocols to be used there;
6. Rules concerning codes of conduct and hearing procedures and appeal process.

Now your job is to begin writing down everything you can remember from your perspective. Effective and thorough documentation should include:

1. Your response to the alleged violation.
2. Corrections to the misinformation to the violation-this can and should be submitted to the disciplinary committee.
3. A timeline, if applicable, of all the actions in question from your perspective, i.e. when you sent a letter, or when you took a class, or when remediation took place.
4. Your plans for remediation, if applicable.
5. Any witnesses, corroboration statements, etc.

Next read your catalog and bulletin regarding evaluation, promotion and the protocol for disciplinary action. Decide if you can have or desire professional or advisory counsel to be present. Finally, read your records and evidence against you. Then prepare yourself, with the following checklist of things to do. You will want to:

1. Review your files. Request them if you are not provided them ahead of time.
2. Request all meeting times, dates, etc., in writing.
3. Record all conversations regarding the allegation, including your hearing.
4. Read your catalog and bulletin. Learn your school's policies regarding due process, code of conduct or academic regulations, hearing procedures, formal hearing appeal process, and policy with regard to student records.
5. Decide whether to bring counsel, and arrange meeting with them if appropriate.
6. Be polite, prompt and well dressed at all meetings. Make sure to attend all scheduled hearings.
7. Keep records of all interactions. You may not be allowed to record the conversation, but you can inquire about recording and about taking notes.
8. Identify the players (i.e., those on the committee who consider your case) and the mechanism they will use to arrive at a decision.
9. Identify your allies. Encourage witnesses who know about your situation to testify on your behalf.
10. Consider appeal and legal assistance if all other options have been exhausted.

HOW TO USE THE ADVOCACY BOARD

As an advocacy organization of physicians-in-training, AMSA is deeply concerned about our members who may have faced discrimination or unfair charges at their home institutions. Our Advocacy Board was established to guide students through difficult times and to provide them with support and resources. We serve to guide students in the right direction, provide advice for students based on our collective experience, and serve as a resource for students who are facing challenging decisions.

The Advocacy Board is not, however, capable of providing legal advice. Never in our history have we done so because we do not have the personnel to do this. We are also not an investigative organization, and unfortunately we also cannot conduct in-depth investigative work on your behalf to unearth various allegations.

What we CAN do is assist you with due process matters and to lead you in the right direction to find additional resources. If you need assistance in regard to a due process matter, or wish to report an allegation at your school, please submit the following form. NOTE: THIS FORM MUST BE COMPLETED BEFORE YOU CALL THE AMSA NATIONAL OFFICE. WE MUST HAVE YOUR CERTIFIED WRITTEN STATEMENT PRIOR TO ANY PHONE OR OTHER INQUIRIES.

Request assistance regarding due process or report an allegation at your school
You must complete ALL of the information on the form. Make sure to include your contact information and name of your institution. Be as specific as you can regarding the specific incident or incidents. You must initial the form at the end to certify that the information is completely accurate in order for the Advocacy Board to consider your case. ALL INFORMATION PROVIDED HERE IS STRICTLY CONFIDENTIAL AND WILL ONLY BE SHARED WITH MEMBERS OF THE ADVOCACY BOARD UNLESS YOU DESIGNATE OTHERWISE ON THE FORM.

Once you complete the form, a number of things will happen:

1. The form is sent directly to the AMSA National President. He/she will call you and discuss the situation with you. Some of the things the President will do during the initial phone call include:
   
   
   1. Helping the student sort out the issue and assess immediacy of the case.
   2. Discussing the role of AMSA in this situation, emphasizing that AMSA is not legal counsel or investigative body.
   3. Referring the student to others who have experienced similar difficulties. For example, if the problem involves a special area of concern, such as minority, women's, or LGBT issue, the student can be referred to the appropriate AMSA action committee coordinator who can act as an advisor for the student.
   4. Advising the student to seek legal counsel. Depending on the situation, different legal counsel can be advised. A blatant case of discrimination may be referred to the ACLU, while others may require private legal counsel. AMSA does not have any legal counsel available on staff; this will be an encouragement for the student to contact legal counsel directly.
   5. Directing the student to other possible resources. There are community and civil rights groups, and other investigative groups, for example Public Citizen, that conduct investigative work when due process is blatantly being violated. AMSA can advise students about other possibilities and provide options for them.
   
   
   
2. Please note that AMSA does not take a stance either for or against a student. Because we do not have investigative capabilities, AMSA has no way of substantiating or refuting a school's charges or a student's claims. AMSA does take a strong stance on insisting that due process is followed. As can be seen from our policy, we believe strongly that every student is entitled to due process and fair play, and that medical schools have an obligation to ensure that such processes are well-publicized and followed to the letter. We therefore do not write letters of support in favor of students or schools on specific cases. Exceptions can be made if discrimination is blatant and groups of students are affected by a school's policies; the Advocacy Board will examine each allegation on a case-by-case basis.
   
   
3. You can take the information provided during the initial call and proceed from there. Most students contact legal counsel and the other resources. If you desire further inquiry from AMSA, you may request for the AMSA President to forward your information on to the rest of the Advocacy Board after a period of seven (7) days after your initial conversation with the AMSA President. The AMSA Advocacy Board will then discuss your case and make their recommendation. As stated above, AMSA does not take stances on behalf of specific students or cases because we are not an investigative body or have legal capabilities. We therefore do not write letters of support in favor of students or schools on specific cases. Each student should be aware of the AMSA Advocacy Board's limitations and capabilities prior to contacting the Board.
   
   
4. In the past a number of students have consistently called the AMSA President and members of the Advocacy Board even after being advised multiple times that there is nothing more that AMSA can do to assist the student. Students have gone so far as to repeatedly call staff at the national office and at their homes. This is NOT appropriate behavior. Intimidation and harassment will NOT work. The Advocacy Board exists to assist students in their time of need. We are volunteers who provide guidance and resources for students. We are not professionals; we do not have legal backgrounds; and we do not have the staffing or investigative capabilities to go beyond providing general advice. Please be respectful of the Advocacy Board. We understand that this is a very difficult time for you. Please follow the instructions outlined above, and we will help you to the best of our abilities.

Sample Cases

It is important to realize that the students in each one of these cases were the victims of inadequate systems of due process. Some approached their situations in a more professional fashion than others did. Many lost.

Keep in mind the best defense in the current system is to stay informed. The best way to improve the situation for yourself and others is to read the documents regarding due process at your schools ahead of time, talk with your Deans, and push for inclusion of model due process guidelines such as the ones that AMSA has adopted. In the end, it will benefit generations of students and the schools themselves. As future physicians of America, we believe that the highest standards of professionalism should be upheld and that medical schools have an obligation to society to train physicians worthy of the inherent public trust. At the same time, due process and fair play must be followed-the lives and livelihoods of many young people are on the line.

WEBSITES AND LINKS

• AMSA's Advocacy Subcommittees:
• Committee on Disabilities
• Women in Medicine
• Lesbian, Gay, Bisexual, and Transgendered People in Medicine
• Minority Affairs Committee
  
  
• The American Civil Liberties Union
• American Medical Women's Association
• American Psychological Association
• Association of American Medical Colleges
• Disabled People's International
• Gay and Lesbian Medical Association
• Learning Disabilities Association of America
• Liaison Committee for Medical Education
• National Gay and Lesbian Task Force
• National Institute of Mental Health
• National Medical Association
• National Organization on Disabilities
• National Organization of Women
• Public Citizen

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REFERENCES

Arkin, Henry R. "Academic Dismissals: Due Process. Part 1." Journal of the American Medical Association, 1985: 254(17), pp. 2463-2466.

Arkin, Henry R. "Academic Dismissals: Due Process. Part 2." Journal of the American Medical Association, 1985: 254 (18), pp. 2653-2656.

Gapen, Phyllis. "Student Due Process: A right that never was." The New Physician, 1978: 27(10), pp. 18-21.

Grieger, Cynthia H., Natalie K Shemonsky and Robert E. Driscoll. The Legal Aspects of Medical School Admissions and Dismissals. Journal of Medical Education, 1 S85: 60(8) pp. 596-601.

Liaison Committee on Medical Education. Functions and Structure of a Medical School: Standards for Accreditation of Medical Education Programs Leading to the M.D. Degree. Association of American Medical Colleges and American Medical Association, 1989.

Office of the Federal Register. Code of Federal Regulations - Public Welfare, 1981, pp. 349-361.

Office of the Federal Register. Code of Federal Regulations 1988, pp. 11942-11944.

Stolz, Jeffrey. Rights and Wrongs. The New Physician, 1987: 36(3), p 48.

Task Force of the Family Educational Rights and Privacy Act of 1974, A Guide to Postsecondary Institutions for Implementation of the Family Educational Rights and Privacy Act of 1974 as Amended, 1976.

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