Do Accused Students Have the Right to Legal Representation?

Posted by On Tuesday, April 15, 2014

While the final Rulemaking session on the Campus SaVE Act has ended, and the committee has reached a consensus on draft regulations, that consensus was reached far more easily for some parts of the regulations than for others. For example, when it came to the provision on disciplinary proceedings the committee didn’t have much trouble agreeing on the definition of an “advisor” as someone who provides “support, guidance, or advice” to the accuser or accused, and that schools would be required to:

(iii)  Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice …

However, when the discussion turned to the role these advisors could play there were “a few tense exchanges” between campus and student representatives regarding whether attorneys could represent students at the hearings. The committee finally agreed that schools could not limit the students’ choice of advisor but could limit the advisor’s participation in the proceedings, “as long as the restrictions apply equally to both parties …”

If this language makes it into the final regulations it may raise other issues that will need to be addressed. For example, North Carolina passed a first-of-its-kind law last year that gives students at public universities the right to have a lawyer present their case when they face disciplinary proceedings (other than a student honor court) for code of conduct violations other than academic dishonesty.

The North Carolina law, however, potentially conflicts with the draft federal regulations. Will federal law preempt state law if a university decides to limit the attorney’s participation? What happens when a student cannot afford legal representation? The draft regulations require that the accused and accuser must have the same opportunity to be represented by counsel of their choice. Does that mean the university must provide counsel to the accused or accuser if one of the parties cannot afford an attorney?

Another issue raised by the draft regulations is whether the school must advise accused students of their right to have an attorney present before being questioned during the school’s investigation. The draft definition of “proceeding” includes investigations as well as formal and informal meetings:

(iii) Proceeding means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, fact-finding investigations, formal or informal meetings, and hearings.

Therefore, it appears that this draft regulation requires both the accused and the accuser to be provided with the opportunity to have an attorney or other advisor present during questioning by school investigators, which goes beyond what is required in a criminal investigation.

Miranda warnings are required when a criminal suspect is in the custody of a sworn police officer. This protects someone who has either been arrested or is in a situation where they reasonably feel like they are not free to leave. Under these circumstances, suspects must be advised of their right to remain silent and to consult with an attorney before being interrogated.

However, if a student is being questioned by a campus authority who is not a sworn police officer, this is not a Miranda situation. This issue came up in a lawsuit against Denison University where the accused student claimed that the university violated his legal rights when Denison’s security director interrogated him without telling him that he had the right to have an attorney present. The student was expelled from the university after being found responsible for sexual assault. The lawsuit settled so we don’t know how the court would have decided this issue and it remains an open question.

While legal representation will increase the appearance of fair and impartial proceedings and increase students’ confidence in the process, it may also blur the lines between student conduct hearings and courts of law. Hopefully, the Department of Education will clarify the distinction between these two proceedings.

The draft regulations now go to the Office of Management and Budget for approval. The OMB’s approval is expected by the end of April, at which point the proposed regulations will be published in the Federal Register, followed by a 45-day public comment period. We’ll be following the process to the final regulations and keep you posted.

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