NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
by Jesse Saffron
On October 25, a heated exchange took place at the meeting of the board of trustees at the University of North Carolina-Wilmington (UNCW). The fireworks weren’t about school finances, or plans for new campus construction, but rather the rights of students accused of non-academic, “behavioral” infractions such as underage drinking, drug possession, and theft.
UNCW is at the center of a collegiate civil liberties debate. For several years, Sigma Alpha Epsilon (SAE), a fraternity at UNCW, was embroiled in back-and-forth wrangling with school administrators over alleged hazing and underage drinking infractions. The fraternity alumni and members felt that the school’s process for handling student and student organization disciplinary matters was lopsided and unfair to students. The relationship between the fraternity and the student affairs office, which oversees what are called “conduct” violations, became contentious.
The fraternity contended that student affairs administrators weren’t allowing SAE members to have legal counsel present at conduct hearings. SAE also contended that administrators conducted much of the proceedings behind closed doors, and that students weren’t allowed to respond to hearsay and unsubstantiated accusations.
In February 2013, the fraternity’s then-president, Ian Gove, wrote a letter to the North Carolina General Assembly asking that students and student organizations involved in non-academic disputes be allowed to have legal counsel, or some form of representation, at all disciplinary hearings.
Two months later, a bipartisan group of legislators drafted a bill titled the Student and Administration Equality Act (The SAE Act-an homage to the SAE fraternity). With the help of Robert Shibley, senior vice president of the Foundation for Individual Rights in Education (FIRE), an organization that promotes students’ freedom on college campuses, the SAE Act became law in August.
North Carolina became the first state in the nation to provide such protections for university students.
The law allows students and student organizations charged with non-academic conduct violations to be represented by an attorney or “non-attorney advocate.” However, students charged with academic dishonesty, or students who face proceedings in a “Student Honor Court” are exempted from this law. This means that, if a student is charged with some offense, and opts to pursue adjudication in a student-led court rather than an administrative proceeding, he or she won’t be able to hire counsel.
The UNC system has opposed the law from the start. In a recent letter to the UNC system schools, Tom Ross, the UNC president, said that he is “troubled” by the law because it “has the potential to fundamentally alter processes intended to help students make better decisions and is likely to add delay and significant costs to the student disciplinary process.” Nonetheless, after the SAE Act became law, the UNC Board of Governors and the General Administration directed each of the 16 UNC system schools to change its procedures to achieve compliance.
At the UNCW trustees’ meeting, a host of topics unrelated to the SAE Act were discussed. But when the issue of the Act came up, an hour-long debate ensued, including a series of adversarial comments made by one of the administration’s attorneys (John Scherer) and Pat Leonard, the vice chancellor of student affairs.
Scherer and Leonard wanted to jump immediately into their talking points-how they were complying with the new law, the importance of campus safety, etc. But before they could begin, trustees who had inside information and were aware of negative anecdotal stories about the student disciplinary process began questioning the administrators and commenting on UNCW’s current procedures.
One trustee, Dennis Burgard, expressed concern that the student disciplinary system has a “great deal of subjectivity” that gives students “very little assurance” that the system is impartial. Thus, even with the promise of legal representation now settled, the trustees expressed substantial distrust of the system.
Some trustees were worried that students might become implicated in criminal cases, undermining the claim by Leonard and Scherer that the process is merely “educational.” UNCW handles approximately 1,300 cases per year, and many of them overlap with criminal offenses. Leonard admitted that, in some instances, campus conduct violations can lead to criminal charges, but said that there is no “double jeopardy,” as courts have recognized that campus proceedings and criminal courts are separate and distinct venues (although in reality, students can be found guilty in both venues-just not twice in the same venue). Trustees also wanted an assurance from the administrators that students were made aware of their right to an attorney before and upon being charged.
Repeatedly stressing that the goal of the student disciplinary process is “educational” in nature, Leonard and Scherer said that the process is intended to “keep students in school,” and that there are significant differences between university disciplinary procedures and the criminal judicial system. Scherer was at times evasive, and condescending to the trustees. When asked by a trustee if he would recognize that the SAE Act originated because of UNCW’s actions toward the SAE fraternity, Scherer replied, “I can’t comment on the intent of the legislature.” At one point, Scherer even began boasting about his past prosecutorial accomplishments to add some “authority” to one of his responses. The meeting began to resemble an episode of Law and Order-on steroids.
Vice chancellor Leonard said that when officials determine a student’s sanction, they look at whether the student has “accepted responsibility,” whether there is a “sense of contrition,” and whether the student understands the impact of his or her behavior. Some of the trustees thought that these vague and undefined terms were indicative of a system that needs a serious overhaul.
The chairman of the board of trustees, Wendy Murphy, highlighted the issue by saying that, unlike campus “conduct” cases, students involved in academic dishonesty cases have a defined and objective set of sanctions that apply consistently. And this is the crux of the problem facing not just UNCW, but all UNC schools reshaping their disciplinary systems to comply with this law. While students now have the ability to retain counsel or some representative at administrative hearings (but not student-led conduct courts), the outcomes of such hearings are still up to the whims of the individual schools. The lack of clearly defined standards may reduce the beneficial impact of the new law.
Since this issue has major civil liberties implications, it wouldn’t be surprising to see other states take a cue from North Carolina in the near future. As FIRE’s Robert Shibley noted after the law was passed, “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.”
In the coming months, UNC system schools will not only have to implement the new law, but tackle some of the other underlying issues that were not addressed by the SAE Act, such as creating a consistent set of student sanctions. If the clash of interests between school administrators and the students’ newly-codified right to an attorney bears any resemblance to the vitriolic spectacle that occurred at the UNCW meeting, this issue may eventually make its way back to the legislature or to the court system.