In Virginia, Right to Counsel Bill Tabled

This week, the Virginia General Assembly had an opportunity to pass legislation that would have significantly advanced the cause of university students' due process rights. The bill, HB 1123, championed by Delegate Rick Morris and former Delegate Mike Watson, was tabled (i.e., set aside for this legislative session) by delegates on the Education Committee's Subcommittee on Higher Education by a vote of 4–2.

In addition to FIRE’s advocacy, testimonial support for the bill was provided by Delegates Morris and Watson as well as Sylvie Casper, whose son, Ben, withdrew from The College of William & Mary on suspicion of sexual assault. Because Ben was not afforded the right to an attorney in the campus disciplinary process, and because any statements he would make in those proceedings could be held against him in future criminal proceedings, Ben was forced to choose between defending himself in his campus hearing and defending himself in court. He chose to defend himself in court, where a jury found him not guilty on all charges. Despite the verdict, the college refuses to readmit him or to remove the statement on his transcript indicating that he withdrew from the campus under suspicion of sexual assault.

Additional testimonial support for the bill was provided by students attendance (including one student who had been through unfair proceedings himself), as well as Frank Bellamy, a third-year student at University of Virginia (UVA) Law School and member of Families for Honor, an organization that advocates for improvements to UVA's honor system.

Opposition to the bill came from an army of lobbyists from most of Virginia's public universities, student conduct administrators, and a few students who operate UVA's student-run honor system. The primary argument advanced by the bill’s opponents was that the current campus disciplinary system works just fine. They insisted that the process is somehow not adversarial, despite the fact that an accused student faces serious, life-altering consequences if found guilty.

The university lobbyists and administrators also argued that even when an institution seeks to expel a student for conduct that would constitute a felony off-campus, the accused student benefits from the counseling and the relationships they develop with administrators during the expulsion hearing. While this might arguably be true with respect to some proceedings over some charges of lesser offenses, depending on the people involved and the nature of the charge, this argument doesn’t pass the laugh test when it comes to the serious expulsion hearings that HB 1123 seeks to cover.

Let’s face it: When your academic, professional, and personal future is on the line, a hearing in front of people threatening to strip your life’s prospects from you is going to be adversarial. And without legislation providing for the right to counsel, the university’s side gets deans, administrators, and as many lawyers as it wants, while the student gets at best an advisor who must remain silent and passive during the process. As with any due process question, it’s worth asking whether this is the way you would want yourself, your child, your grandchild, or your best friend to be treated. Remember, we’re not talking about a parental relationship with a teenager trying to hide the time he or she scratched the car. Campus hearings at public universities where suspension or expulsion is at stake involve government officials dishing out life-altering punishment to adult students who are old enough to vote and to fight for their country.

It’s also important to realize that universities can already provide counseling services outside of the disciplinary process. Students would be better served if their counselors were not empowered to use what they say against them in expulsion proceedings. That’s just plain common sense.

HB 1123 would have dramatically advanced the due process rights of students facing lengthy suspensions or expulsion by providing them the much-needed right to hire lawyers who could actively participate in the hearing process. Although the bill would not have provided public funding for students to hire legal representation, prohibiting universities from banning lawyers from the process would have made a huge difference. As I told USA TODAY College for an article about North Carolina’s similar bill, which passed w by the overwhelmingly bipartisan tally of 112–1 last year:

"Low-income students will (still) benefit from the right to hire attorneys because that opens up the door for the possibility of pro bono representation," Cohn wrote. "Moreover, student governments could use some of their considerable funding to contract with local attorneys to meet students' need for representation."

As my colleague Robert Shibley noted in an op-ed for the Charlotte News & Observer, prior to the passage of North Carolina’s law, “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.” And as he wrote, the advocate doesn’t even have to be an attorney, because “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.”

The bottom line, as Robert wrote in an op-ed for a North Carolina paper last July, is that it is

simply unreasonable to expect 18- or 19-year-old students to competently represent themselves before deans and administrators with decades of experience — who act as judge, jury and executioner for campus crimes. This imbalance is particularly acute for students from disadvantaged backgrounds. While it’s possible that students who grew up around lawyers or other professionals may face such a tribunal with confidence, first-generation students or those who rely on substantial financial aid have the added burden of knowing that their livelihoods — and often the dreams of their families — are on the line. For them, having legal representation during the few hours of a hearing could make a difference that will last for decades.

Of course, the above would also have been true in Virginia.

Although the Virginia bill did not clear the committee this time around, supporters should not be discouraged. The issue of campus justice has been placed in the minds of legislators who previously were unaware there was a problem. Justice delayed might be justice denied, but you may rest assured that FIRE will continue to make the case for reforms to the campus judiciary until students are afforded meaningful due process protections and fundamentally fair hearings.