Students Lawyer Up
August 26, 2013
Inside Higher Ed
Campus officials like to say that student disciplinary hearings are not court proceedings. There is no such thing as a finding of guilt -- only "responsibility" -- and even in the most serious cases where students are suspended or expelled, they say, the purpose is more to teach good citizenship than it is to punish wrong behavior.
Which is why a new law in North Carolina, the first of its kind, has them worried. The legislation, signed into law on Friday, guarantees any student at a public institution in the state the right to legal representation, at the student's expense, during campus judiciary proceedings.
"A key component of the developmental process of responding to student misconduct is for the student to take responsibility for their own behavior and to learn from the incident," said Bill Haggard, vice chancellor for student affairs at the University of North Carolina at Asheville. "Part of that learning experience is being able to speak on their own behalf, take responsibility for their own behaviors and engage in a conversation about changing their behavior in the future."
That will be a whole lot less likely, officials say, if students have a lawyer speaking for them.
"It's obviously something that most student affairs professionals are not that crazy about," Haggard said.
The law includes an exemption for academic charges such as plagiarism and for hearings where the panel issuing judgment is entirely student-run, as is usually the case at the University of North Carolina at Chapel Hill.
Previously, campuses in the 17-campus UNC System allowed lawyers to attend hearings, but only to advise. (Most universities operate this way, or do not permit lawyers at all.) So a lawyer might whisper or pass a note to a student being questioned, but he or she could not speak on the student's behalf (except when a student is also being tried in criminal court, in which case full representation is allowed). Officials worry that changing that will drag out the length of proceedings -- by who knows how long, if attorneys are able to do things like motion for stays -- and hike up the cost. (Other questions student affairs officials are asking: In a sexual assault hearing, if the accused student can afford to lawyer up but the accuser can't, will the university be compelled to provide an attorney? And will campuses have to bring in their own lawyer to represent themselves in each case?)
Part of the problem is that the legislation does not define terms like "representation" and "fully participate," so the extent to which lawyers will be able to participate in proceedings is unclear, officials say.
"From a system perspective, that immediately raises questions," said Thomas Shanahan, interim general counsel at the UNC System. "When the General Assembly adopts legislation, we look to implement it and comply with it to the best of our ability, and the first step, of course, is saying what does this mean and what do the terms mean and how will that work with our processes."
However, some civil liberties advocates, such as the Foundation for Individual Rights in Education, which worked with legislators to get the bill passed, say the new law is crucial to ensure students receive due process in hearings that could make or break their academic future. Though it's uncommon, students can be expelled when found responsible for certain conduct violations.
FIRE has seen "case after case" where students were not awarded due process, universities did not follow their own rules during hearings, and students were otherwise denied their Constitutional rights, Senior Vice President Robert L. Shibley said.
UNC at Chapel Hill has been the subject of one of the most high-profile federal complaints by students who alleged the university violated Title IX of the Education Amendments of 1972 by not following appropriate procedures when hearing sexual assault cases.
"It's a real plus for student rights," he said. "To the extent that universities are now on notice that they're going to have to follow all the rules, that's a good thing."
If a non-college student would face a felony charge in court for a crime of the same nature as the one a student allegedly committed, Shibley says, that student should be afforded the same legal representation. Particularly for first-generation students or those from underprivileged families, he said, protecting and standing up for oneself in front of a bunch of administrators and professors is a difficult and intimidating prospect.
Even with the legislation's provision allowing students to opt for a "nonattorney advocate" if, for example, they can't afford to pony up for a lawyer, it also opens up the door to the most affluent students essentially paying their way out of responsibility, officials said.
"Whoever's able to hire the best and most expensive attorney is likely to win the day," said Chris Loschiavo, president of the Association for Student Conduct Administration and director of student conduct and conflict resolution at the University of Florida. "It raises lots of potential questions and problems and it makes what is an educational and administrative process now into a quasi-courtroom."
Regardless, public North Carolina campuses are now working on revising their conduct codes and related procedures to reflect the students' new right. The UNC System on Friday distributed an advisory on what the law means and how to write it into campus policies.
Hopefully, UNC at Greensboro interim university counsel Imogene Cathy said, that guidance will help campuses keep attorney interference to a minimum.
"I think lawyers who don't know about the higher education setting," she said, "don't appreciate the difference that it's not a legal proceeding. They think everything is a legal proceeding."