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Coalition’s Open Letter Mischaracterizes Right to Counsel Legislation

By February 20, 2015

In an open letter sent to state legislators nationwide yesterday, a coalition of organizations argues that lawmakers should reject state bills that would require public colleges and universities to grant students facing non-academic disciplinary charges the right to an attorney. Led by NASPA: Student Affairs Administrators in Higher Education, the coalition mischaracterizes legislative efforts to ensure fundamental fairness in campus hearings.

The coalition charges that right-to-counsel legislation—like the bipartisan bill that North Dakota lawmakers successfully passed out of the state Senate yesterday—grants “an unfair advantage to accused students” and “inject[s] inequality into campus disciplinary proceedings” by affording students accused of non-academic misconduct that may result in suspension or expulsion the right to hire and be assisted by an attorney at their own expense.

The coalition’s argument is baseless and should deeply worry all those who, like FIRE, believe that student discipline must be founded on fairness and truth.

Providing the right to the active participation of counsel to students who face serious disciplinary sanctions restores needed balance to campus disciplinary proceedings while doing no harm to (and indeed aiding) colleges’ ability to reach accurate and just results. At present, accused students facing life-altering charges are frequently left to represent themselves against a dizzying array of university lawyers, Ph.D.-educated deans and administrators, specialized Title IX coordinators, and high-priced outside legal consultants—in disciplinary proceedings devised and administered by self-interested institutions seemingly more concerned with public relations and the threat of federal investigation than with reaching a just result. Assistance from an attorney helps accused students better navigate these increasingly unfair and dangerously imbalanced campus proceedings—“kangaroo courts” that have prompted sharp, continuing criticism from students, faculty, campus administrators, civil libertarians, lawyers, distinguished legal scholars and consultants, legislators, parents, journalists, and the general public.

The active assistance of counsel is especially important—and legislative action protecting it is especially necessary—when an accused student faces allegations of sexual assault, which may result in criminal charges. Only an attorney is qualified to provide advice to a student about his or her rights against self-incrimination under the Fifth Amendment. This advice is particularly vital given that statements made by students in campus proceedings may later be used as evidence against them in criminal proceedings. In such situations, the assistance of counsel is not “an unfair advantage,” but rather a crucial check against unfairness.

The coalition charges that right-to-counsel bills are an “obstruction to the aims of federal laws” because they provide accused students, “but not student victims,” the “right to be represented by attorneys, to seek judicial review of IHE [institutions of higher education] student disciplinary or other institutional proceedings, and/or to obtain monetary damages if a court finds in favor of the accused student.” This claim dissolves upon examination.

Under the Violence Against Women Reauthorization Act of 2013, both alleged victims and accused students enjoy the right to be accompanied by attorneys in campus sexual assault hearings. Department of Education regulations implementing the law allow, but do not require, institutions to limit the participation of attorneys in such cases, though they cannot limit their presence. Yet the coalition argues that state right-to-counsel legislation upsets the “balance” of these regulations by requiring a state’s universities to allow attorneys to fully participate, rather than act only as silent advisors—a choice fully contemplated by and acceptable under the regulations. Further, the coalition ignores the fact that the implementing regulations require any rules regarding advisor participation to apply equally to both sides. As such, institutions in states with right-to-counsel legislation allowing for full participation of an attorney or advisor would be obligated to extend that right to both parties.

The coalition also objects to legislation providing for judicial review of disciplinary or institutional proceedings, or for monetary damages from schools whose procedures prove insufficient. Again, this is nothing new. Recent headlines document such lawsuits filed by both alleged victims and accused students, and for decades, courts have reviewed university disciplinary processes and decisions, sometimes overturning them and granting monetary damages to students. The coalition’s contention that this is an “unprecedented intrusion into … decision-making” of institutions of higher education by “state courts with no particular expertise in IHE policy or higher education” is incorrect. Simply put, there is nothing unprecedented about it. It is particularly odd to deride courts’ supposed lack of expertise given that later in the letter, the coalition approvingly invokes “dozens of cases” involving student due process rights. Were the courts in these cases similarly uninformed?

It is also important to note that alleged victims not only enjoy the same access to judicial review as accused students, but also possess almost exclusive access to administrative review. The federal Department of Education’s Office for Civil Rights (OCR) is currently conducting more than 90 investigations into university disciplinary policies and proceedings; to FIRE’s knowledge, only one involves an institution’s treatment of an accused student. Moreover, recent OCR settlements have included “monetary relief” to alleged victims (though from where OCR derives such authority is unclear)—a result that has not been obtained for accused students, whose only alternative for monetary relief is costly, time-consuming litigation.

NASPA next argues that right-to-counsel bills “thwart [institutions’] efforts to prevent and end sexual and gender-based violence against their students,” claiming that the legislation would “make it difficult if not impossible to remove from campus students who are subjecting other students to violence.” These claims are also baseless.

As an initial matter, students who have committed violence or pose a serious threat of committing violence should immediately be reported to law enforcement. FIRE would hope that NASPA and its coalition partners agree. (After all, an expelled student can still prey on additional victims—including students who still attend the college. Only our criminal justice system has the power to protect campuses by sufficiently punishing those properly found guilty of an act of violence.) No provision of the right-to-counsel bills proposed or enacted prevents institutions from taking the obvious and necessary step of contacting law enforcement to “prevent and end sexual and gender-based violence against their students.” Nor does any provision of these legislative initiatives prevent law enforcement from removing “students who are subjecting other students to violence.” Additionally, colleges and universities may respond to students that credibly pose an immediate threat of physical harm by issuing temporary measures to address that threat, as long as a hearing regarding the temporary measures is conducted as soon as practicable.

Likewise, nothing in North Carolina’s right-to-counsel legislation, which passed an otherwise bitterly divided House in 2013 by a near-unanimous, bipartisan vote, prevents an institution from taking disciplinary action—including a temporary exclusion from campus, suspension, or expulsion—against a student “subjecting other students to violence.” Rather, it requires only that students or student groups facing non-academic disciplinary charges be allowed the right to be represented, at their expense, by an attorney who may fully participate in the process. Similarly, the North Dakota bill currently advancing through the state legislature does not prevent institutions from taking disciplinary action against students. Nor did the Massachusetts bill considered last year.

Even those right-to-counsel bills that do grant students the right to judicial review of a campus tribunal’s decision in district court—like the original version of the North Dakota bill, and those considered in Virginia and South Carolina—do not contain any provision that would prevent campuses from taking disciplinary action against students and enforcing that action while review was pending. And again, we remind NASPA and its coalition that all accused students and student organizations—and all alleged victims—may already challenge a public institution’s disciplinary action or judicial procedures in court. Judges already have the power to review the disciplinary decisions reached by public institutions. The right-to-counsel bills that include these provisions reinforce judicial access; they do not create it.

NASPA and its coalition members cannot truly profess to be concerned about “unfair advantages” or “injecting inequality” into campus disciplinary proceedings unless they are prepared to similarly criticize the proposed federal Campus Accountability and Safety Act. If passed, this bill would require universities to provide an alleged victim with a confidential advisor to apprise the student of his or rights and the university’s responsibilities—while providing no such advisor for the accused. In no sense of the word is such a provision “equitable.”

Nor can NASPA and its coalition members seriously claim to care about “outside interference at an unprecedented level into internal IHE administrative proceedings.” If they did, they would have loudly voiced similar concerns about the sweeping mandates announced by OCR in the 2011 “Dear Colleague” letter: transformative requirements for campus discipline that have fundamentally altered university disciplinary proceedings nationwide, effectively carrying the force of law without having been subjected to public notice and comment as required by the Administrative Procedure Act. It is impossible to square the coalition’s apparent welcoming of “outside interference” from unelected federal bureaucrats with its condemnation of legislative initiatives proposed by state elected officials.

FIRE strongly supports right-to-counsel legislation because the participation of an attorney can act as a necessary corrective to campus disciplinary proceedings that have forsaken fundamental fairness and a commitment to meaningful due process protections. Granting students facing expulsion or suspension for non-academic disciplinary charges the right to assistance from an attorney or advisor of their choice does not “thwart IHE efforts to prevent and end sexual and gender-based violence against their students”; rather, it helps ensure that those worthy efforts are not advanced by sacrificing a fair chance at justice. As 16 members of the University of Pennsylvania Law School faculty wrote this week, in criticizing both their institution’s new sexual assault policy and OCR’s mandates, “there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.”

Finally, FIRE is concerned about various other aspects of the NASPA coalition letter. For example, it claims that use of the “preponderance of the evidence” standard of proof in campus sexual assault cases is required by Title IX. It is not; it only became “required” under the mandates issued without required notice and comment in the 2011 “Dear Colleague” letter. The coalition also contends that turning over reports of “gender-based violence and trauma” to law enforcement “perpetuates stereotypical and discriminatory attitudes towards victims,” with no indication of why this should be so or why reports of such crimes (often felonies) do not deserve consideration by the criminal justice system.

It is perhaps unsurprising that a coalition led by campus administrators opposes the involvement of attorneys in student disciplinary procedures. The presence of competent counsel has always served as a check on administrative error, and decisions that would otherwise be uncontested may now be subject to oversight, discussion, and review. But instead of embracing the opportunity to establish a reliable, open campus disciplinary system that acts with recognized integrity and arrives at supportable decisions, campus administrators seek instead to insulate their authority from oversight and double down on a failed attempt to establish a parallel judicial system on campus, unencumbered by traditional American notions of due process and fair procedure.

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections