Joe Cohn: Current System Throws Students Into Lion’s Den

By February 1, 2015

By Joe Cohn at Grand Forks Herald

The following testimony in support of Senate Bill 2150 was submitted to the North Dakota Senate Judiciary Committee by Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education (FIRE). It has been edited for length.

I am an attorney and executive for the Foundation for Individual Rights in Education, a nonpartisan, nonprofit organization dedicated to defending core constitutional rights on our nation’s university campuses. These rights include freedom of speech, legal equality, due process, religious liberty and sanctity of conscience -; the essential qualities of individual liberty and dignity.

I write to you today to voice FIRE’s strong support of SB 2150. This legislation provides university students facing serious, nonacademic disciplinary charges the right to be represented by an attorney or other advocate of the student’s choosing in a campus hearing.

This legislation is sorely needed because today’s colleges and universities operate what amounts to their own parallel justice system while failing to provide the meaningful due process protections guaranteed in our nation’s courts.

Universities throughout the commonwealth hold hearings for a wide range of serious offenses including theft, harassment, assault, drug and weapons possession, stalking and rape. Until SB 2150 is passed, students in North Dakota’s public universities accused of such serious misconduct will continue to be forced to represent themselves — alone — against experienced and professionally trained deans, administrators and university attorneys in proceedings that fail to guarantee core components of the right to due process.

The status quo is fundamentally unfair, and legislative action is required to rectify it.

The stakes are very, very high; the results of these hearings dramatically change the course of students’ lives. An expulsion for criminal activity will have lifelong consequences for a student’s education and professional career. Such a finding impedes a student’s ability to secure jobs — even jobs that do not require a college degree.

After all, why should an employer take a chance on a “proven” rapist or thief?

Complicating matters further, nothing prevents criminal prosecutors from using statements made in college courts against the accused in criminal proceedings. Without a lawyer during these campus hearings, students may unknowingly waive Fifth Amendment rights.

If college tribunals were adequately protecting students’ rights, this bill might not be necessary. But that is not the case. FIRE learns of shocking due process abuses from college students across the nation every year.

At the University of North Dakota, for instance, undergraduate student Caleb Warner was accused of sexual assault. Upon investigating, the local police refused to charge him with any crime. In fact, after the evidence they gathered overwhelmingly indicated that Warner’s accuser had been untruthful, the police charged her with filing a false report.

Yet the university still found Warner guilty — a decision it only vacated a year and a half later after negative national media attention.

There are thousands of “Caleb Warners” throughout the country — and undoubtedly many in North Dakota — who would benefit from the meaningful due process this bill would provide to the campus disciplinary process. Denying voting-age adults the right to be represented by an attorney when their educations and careers are on the line simply doesn’t make sense.

Although FIRE doubts that SB 2150’s implementation actually would cost the state anything close to the $2.6 million estimated by the fiscal note (after all, how many students do the colleges plan to subject to expulsion hearings each year?), that price is well worth it, when one considers the serious risk of harm to students’ futures when they are sent into these hearings to fend for themselves.

When similar legislation was passed by an overwhelmingly bipartisan vote in 2013 in North Carolina, campus administrators made a misplaced argument about the “educational” nature of campus disciplinary hearings.

Upholding the vital importance of fundamentally fair hearings and the need to protect student rights, the North Carolina Legislature rejected this claim and recognized that when a student is accused of a crime and subject to expulsion if found responsible, the process is undeniably punitive.

The North Carolina Legislature has been noted for its partisan division as of late, but it was hardly divided on this question — the right to counsel bill passed by a resounding vote of 112 to 1.

SB 2150 is necessary because it is simply unreasonable to expect 18- or 19-year-old students acting alone to competently answer serious charges posed by deans and administrators with decades of professional experience acting as judge, jury and executioner for campus crimes.

FIRE urges you to support this critically important bill.

Schools: University of North Dakota