Balancing the scales for students
August 30, 2013
by Robert Shibley
News & Observer
Students in our state’s university system returning to class this fall will be afforded a valuable new right previously denied to them: access to an attorney when accused of campus crimes. That’s because last week, Gov. Pat McCrory signed into law provisions guaranteeing college students this right – a right all of us off campus take for granted.
North Carolina parents should know that colleges these days operate what amounts to their own parallel justice system. N.C. State, for instance, holds hearings for offenses including theft, harassment, assault, drug and weapons possession, stalking and rape. And until last week, 18- and 19-year-old students accused of these serious offenses were forced to represent themselves, alone, against experienced deans and administrators in hearings that could change the course of their lives.
In previous years, lawyers were generally allowed to attend only the hearings when a student was also charged with a crime in real courts as well – and even then, all they could do was whisper advice to their clients and hope for the best. Meanwhile, UNC schools were (and still are) free to send any number of lawyers to any campus hearing, regardless of the issue. The provisions extending this right of representation to students, originally introduced by a bipartisan group of legislators as the Students & Administration Equality Act (and later rolled into a regulatory reform bill) begin to address that built-in inequality.
Off campus, the idea that people accused of crimes should have lawyers is uncontroversial. Indeed, the standalone bill with these provisions passed the N.C. House by a vote of 112-1. Yet UNC system leaders have opposed the new law, claiming that campus hearings are supposed to be part of the “educational process” and that having access to counsel will somehow rob the students of a learning opportunity. But it’s hard to see how an assault hearing that results in a young adult’s suspension or expulsion for conduct that would be a felony in a real court is “educational.”
A working group on sexual assault policies and procedures at UNC-Chapel Hill sees the law as a stumbling block, especially as the group wanted to consider “restorative justice” (an approach that is aimed at meeting the needs of both sides while still allocating responsibility) as a solution to sexual violence. If fundamental fairness is the goal – and it should be – it’s not clear why students facing such serious, life-altering charges shouldn’t have access to counsel. And surely the working group knows that in 2011, the federal Department of Education warned that face-to-face mediation, a hallmark of restorative justice programs, is “not appropriate even on a voluntary basis” in cases of sexual assault.
One good question that many ask when they hear about the law is, “What about students who can’t afford a lawyer?” It’s important to remember that until last week, students couldn’t have lawyers regardless of whether they could afford it. But with that restriction gone, there are many good, creative ways to ensure that all students have access to counsel.
Student governments could use some of their considerable funding to contract with local attorneys to meet students’ need for representation. There’s precedent for this kind of arrangement; the University of Florida student government alone employs four lawyers to do free legal work for students. North Carolina law schools could start clinical programs in which law students can represent students free. Duke has students working on the far more complicated matters of appellate litigation and even the defense of Guantanamo Bay inmates, so representing underprivileged students facing charges should be comparatively straightforward. And the law provides for the possibility of a non-attorney advocate for cases in which students simply wish to have the support of a more experienced person who doesn’t happen to be a lawyer.
Allowing students counsel in campus disciplinary hearings is a modest yet vitally important reform. Universities need not change any rules other than those that previously prevented students from having attorneys. And because one of the fundamental tasks of an attorney in any situation is to ensure that procedural rules are followed, the presence of counsel will ensure more reliable, trustworthy and just conclusions for all involved.
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