North Carolina Takes an Important First Step

©2015 Kenneth N. Margolin

Most American colleges do not allow attorneys to represent students in college disciplinary hearings, even when the charge is severe enough to result in suspension or expulsion. No exceptions are made for charges that also describe crimes, such as charges of rape, assault or theft. A college student charged with a serious violation of the college disciplinary code, must usually present his or her own case in a proceeding at which guilt is often presumed, before college officials or in some cases, students, who are not trained to assess evidence and witnesses or to determine guilt or innocence.

On what basis should untrained individuals be entrusted with evaluating evidence, when so much is at stake? In our judicial system, judges are responsible for evaluating evidence, and in jury cases, instructing jurors on the law to be applied to the evidence, as well as keeping from the jurors, evidence that lacks sufficient potential for relevance or credibility, or that is too prejudicial to be taken into account. Judges are attorneys who have usually practiced law for many years before taking the bench. They undergo a judicial training process that includes spending time observing a seasoned judge. Administrative law judges, the hearing officers who decide cases involving welfare, social security, unemployment compensation, professional licensure, and a variety of important matters, are also experienced attorneys. Moreover, once they take their positions as hearing officers, evaluating evidence and properly applying the law to the cases before them, is their primary occupation, not an occasional obligation on the side.

An essential part of an attorney's training is to question the bases for conclusions, which is highly relevant to assessing evidence and applying it to the facts of a given case. College officials or professors, on the other hand, have not devoted their professional lives to hearing and deciding disputes. Moreover, they often lack a mindset that includes a presumption of the accused's innocence, and a wariness of believing accusations until they are shown likely to be true by persuasive evidence. Add to the equation, the fact that a college student thrust into an intimidating situation may have no good idea how to present his case, or challenge a case against him, and you have created the opportunity for serious injustice. When a student is accused of lesser offenses, a lawyerless process may be sufficient. When suspension or expulsion is at stake, an attorney must be involved.

In 2013, North Carolina took a halting step to right the injustice of requiring students to face suspension or expulsion without the assistance of counsel, by enacting a statute guaranteeing college students the right to counsel in certain situations. The law, GSA s. 116-40.11, states that any student enrolled in a North Carolina college or university, accused of a conduct code violation not involving "academic dishonesty," shall have the right to be represented, at the student's expense, "by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation." Granting the student's attorney the right to participate fully in the hearing, is a huge improvement over most college conduct codes, which either allow no attorney representation, or allow the attorney only to attend a hearing and advise his client, but not to present the defense or even address the disciplinary hearing panel.

Unfortunately, the North Carolina law does not address steps along the way to a hearing, such as requiring a full and detailed notice to the accused, or the obligation of the college to provide its witness list and to provide any exculpatory evidence in its possession, to the accused. The law also creates a major gap in its promise of the right to attorney representation in disciplinary hearings. Students have no right to bring attorneys if the college or university has implemented a "Student Honor Court" which is fully staffed by students to address such violations." Unfortunately, a number of North Carolina colleges do cause disciplinary cases to be heard by all-student panels. The accused student is therefore doubly jeopardized. His fate will be decided by fellow students, most of whom will lack the life experience, and certainly the training, to evaluate witnesses and evidence, and decide who will keep and who will lose their college education – and no attorney will be permitted to bring a seasoned eye to the process. Despite its flaws, however, the North Carolina statute is an important advance in student rights.