Student lawyering

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A new law passed by the General Assembly may expand opportunities in what is already a surprising niche area of the law—the representation of college students facing disciplinary charges.

The injection of attorneys into academic disciplinary proceedings is not itself new. Students with the financial means to do so often employ attorneys to help them navigate the process, something that can be at times controversial with advocates for victims.

“I wouldn’t say that it’s common, but I would say that over the years I have advised a number of students and families in this type of proceeding at multiple colleges,” said John Gresham, an attorney with Tin Fulton Walker & Owen in Charlotte. “Quite often it is to help the student and his or her parents understand the process and give them some advice.”

Elliot Abrams, an attorney with Cheshire Parker in Raleigh, recounts the story of one student client he counseled. As the student’s case dragged on, he had a series of student advocates whose involvement varied, and were particularly difficult to get hold of around exam time. As a result, the student didn’t trust his advocates and felt a need to advocate for himself. In practice testimony, he spent less time presenting his version of the facts than spouting off legal theories.

Abrams and his partners stepped in and counseled the student defenders to help them become better advocates, and prepped the client to become a better witness. The result was that the client was less defensive in his testimony and focused on telling his side of events rather than trying to argue his own case. In the end, he was acquitted.

“It was a pretty good case study in the problem of not having actual lawyers fully participate,” Abrams said. “We were essentially his shadow lawyers.”

Lawyers can now come out of the shadows. A section in the Regulatory Reform Act signed Aug. 23 greatly expands the potential role for attorneys, for the first time allowing them to speak directly on behalf of student clients. The law grants public university students accused of violating disciplinary or conduct rules the right to be represented, at their expense, by an attorney or other advocate who now may fully participate in university proceedings.

Unlike in the criminal justice system, attorneys will only be available to those who can afford them, raising concerns of unequal access. The law also contains exceptions for allegations of “academic dishonesty” and for schools that have implemented a Student Honor Court, which is fully staffed by students, to address violations. The University of North Carolina at Chapel Hill has such an honor court.

The law appears to be the first of its kind in the nation, but UNC-Chapel Hill’s honor court has also come under more scrutiny in the last year than any other in the country. That, and a letter sent out to colleges by the U.S. Department of Education pushing them to get tough on sexual assault on campus, may have provided part of the impetus for the change.

All’s not well by The Old Well

Technically speaking, all communications to universities from the DOE’s Office for Civil Rights are “Dear Colleague” letters, but when you ask about “the” Dear Colleague letter, people in the field know exactly which one you mean.

In April 2011, the OCR sent schools a letter clarifying how they need to handle sexual assault allegations in order to comply with Title IX. Among other things, the letter said that schools couldn’t treat sexual assault cases like amateur criminal courts or use the “clear and convincing evidence” standard employed at UNC-Chapel Hill and other schools. Instead, schools needed to adjudicate such cases using the “preponderance of the evidence” standard common in civil cases.

In January, five women filed two complaints with the DOE alleging that UNC-Chapel Hill was not in compliance with federal law. They say the school violated federal laws that require the reporting of sexual assault allegations and failed to properly handle reports of sexual assault made by students. The fallout from the complaint brought national headlines and criticism of the school.

UNC-Chapel Hill has since changed its policies, and although the policies are still undergoing review, charges of sexual assault are no longer handled through its honor court—which also means that they will fall under the ambit of the new state law.

Gresham said he believes the attention paid to sexual assault cases at UNC-Chapel Hill led to the passage of the new law. Students who had to defend themselves from sexual assault allegations were placed in “a very difficult position” by the new federal policies, he said.

“It will mean students will have a chance to truly present their case,” Gresham said. “I think it’s critical that the accused student have the opportunity to put on the best defense. I think this was a welcome and surprising change in the law.”

But some advocates for sexual assault survivors argue that injecting attorneys into the process creates a power imbalance between accuser and accused—defendants can get experienced attorneys to defend them, but, unlike in the criminal justice system, the official advocate for a survivor will often be a non-attorney lacking the resources of professional prosecutors.

One of the complainants against UNC-Chapel Hill, Annie Clark, is now a consultant for endrapeoncampus.org, which provides direct support to students who file federal complaints against colleges over their handling of sexual misconduct claims. Clark said sexual assault survivors often have difficulty holding their attackers accountable in university disciplinary systems.

“A lot of times survivors were very much silenced and didn’t want to speak up,” Clark said. “People who are accused had more money and more resources and could hire an outside person, and a lot of times that just shuts a survivor down. Most of the time, they should have been afforded the same resources by the college but weren’t being given the same rights. That wasn’t the policy, but that’s how it was in practice. So you have people accused of crimes being granted rights to appeal or extra things, but not if they were a survivor.”

Know Your IX

Universities will have to comply not just with the state law, however, but with federal policies to enforce Title IX that provide certain protections to sexual assault survivors.  Attorney Clay Turner of McSurely & Turner in Chapel Hill said federal law requires accusers to have the same access to the system as the accused. If state law says universities must allow defendants the right to consult with an attorney, then under federal law they must allow complainants to retain attorneys as well, Turner said.

Turner said he is generally a proponent of allowing lawyers into adversarial university proceedings, but doesn’t think the new law was particularly well crafted. The purpose of the Title IX regulations is to combat sex discrimination and ensure that all students can pursue an education free from harassment, he said.

“I think part of what this law gets wrong is it falls into the misguided view that these Title IX hearings are somehow analogous to criminal hearings, which they’re not,” Turner said. “It’s not criminal court-lite, that’s not what is it, and that’s an easy trap to fall into. We’re not thinking about it the right way when we think about it that way.”

Survivors of sexual assault can, and sometimes do, file criminal charges in addition to university proceedings. But Clark said that universities can provide relief that the criminal justice system can’t, including expulsion or suspension from school or, failing that, ensuring that a victim and an attacker don’t wind up assigned to the same class, or the same dormitory.

In all cases, not just sexual assault cases, the new law introduces a new element for universities as they balance the need to ensure student safety along with the rights of the accused.

Abrams said that under the old system, students had to navigate a system that lacked many fundamental safeguards of those rights. The new law, he said, “will hopefully restore a level of neutrality and fairness to a system that had become dominated by political pressures unrelated to the guilt or innocence of the accused.”

Follow David Donovan on Twitter @NCLWDonovan