Virgnia-capitol-vibrant-feat
Virginia Legislature Considers Bills to Safeguard Student Rights

By January 15, 2014

Yesterday, we reported on Virginia Delegate Scott Lingamfelter’s bill that would prohibit public colleges in Virginia from misusing “time, place, and manner” restrictions in violation of the First Amendment. Today, we’re happy to bring you news of yet another Virginia bill that would safeguard the rights of students at Virginia’s public institutions of higher education.

Following in North Carolina’s footsteps, Delegate Rick Morris has introduced a bill that would grant students facing serious non-academic disciplinary charges the right to be represented by an attorney or other advocate of the student’s choosing.

HB 1123 provides, in part:

Any student enrolled at a public institution of higher education who is accused of a violation of the insitution’s rules and regulations for the conduct of students that is punishable by a suspension of more than 10 days or expulsion shall have the right to be represented, at the student’s expense and per the student’s sole discretion, by a licensed attorney or a nonattorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the educational institution regarding the alleged violation.

After North Carolina passed a similar law back in August, FIRE Senior Vice President Robert Shibleyexplained why this legislation is so important:

Students across America are regularly tried in campus courts for serious offenses like theft, harassment, and even rape. Being labeled a felon and kicked out by your college carries serious, life-altering consequences. Because the stakes are so high, students should have the benefit of an attorney to ensure the hearing is conducted fairly and by the rules[.]

Unfortunately, FIRE regularly receives case submissions alleging administrative disregard for the procedures owed to students facing disciplinary action. The presence and participation of an attorney may make administrators think twice before ignoring students’ right to a fair hearing.

Opponents of right-to-counsel laws often attempt to justify the denial of procedures that protect students by arguing that student discipline should be a flexible, educational experience from which students can learn, instead of a court-like process. This explanation is typically of little solace to accused students, whose lives and careers can be derailed by a college’s poorly considered decision. As my colleague Susan Kruth has explained:

Not every accused student has, in fact, made a mistake from which he or she needs to learn. Further, the process of determining whether a student is responsible for the charge in question is often adversarial, whether [administrators] acknowledge[] as much or not. The school and an accused student usually are not working together towards a goal of rehabilitation, based on a mutual understanding of underlying facts. Quite the opposite: An accused student is generally denying the school’s assertions of certain facts and trying to ensure that he or she will not be unjustly punished.

Invariably, some administrators will also oppose the bill because they claim it will enable students to evade responsibility by hiring an attorney. We would remind them of Professor KC Johnson’s excellentrebuttal to this argument in August:

[I]f the mere act of having a good attorney identify weaknesses in the college’s case is enough to collapse the college’s case, then maybe the college didn’t have much of a case to begin with.

The bill would also grant student organizations the right to hire representation in disciplinary cases, and provide for review by the courts in order to ensure that students’ rights are being respected.

All told, the Commonwealth of Virginia appears poised to strike a strong blow for student rights at its public colleges and universities this legislative session. We hope that the trend will continue, and that more states will take up the cause of student rights. We will bring you updates as these bills make their way through the legislature.

Image: Virginia state capitol building - Architecture Richmond

Cases: Virginia: Right to Counsel Bill Virginia: Bill Would Eliminate Unconstitutional ‘Free Speech Zones’