Public university students facing disciplinary charges may now hire an attorney to help them throughout the process, according to a new state law.
The legislation, signed into law last week by Gov. Pat McCrory, could change the tenor of student conduct hearings at UNC system campuses across North Carolina. In the past, students could have an attorney advise them informally, but for the most part lawyers were barred from presenting evidence, cross-examining witnesses or other direct representation during campus proceedings.
The new law would apply in student conduct matters but not in cases of academic misconduct. It would allow students to have an attorney at their own expense, or a non-attorney advocate, “fully participate” during any disciplinary procedure.
One exception would be in student honor courts that are strictly run by students, such as the honor system at UNC Chapel Hill. But it would apply in campus judicial hearings involving sexual assault, for example.
North Carolina’s law appears to be the first in the nation to extend the option of legal representation to students for college disciplinary proceedings, said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education.
The foundation advocated for the legislation, which had stalled as a separate bill earlier in the session.
“Many North Carolinians and Americans generally don’t realize that when you are accused of campus crimes you almost never are allowed to have a lawyer to represent you in those tribunals,” Shibley said. “So I think it’s a common-sense reform.”
The law does not require the state to provide attorneys for students who can’t afford them, the way criminal courts do, and it’s unclear who would pay for low-income students to have legal representation, said Tom Shanahan, interim general counsel for the UNC system’s General Administration.
In addition, Shanahan said, campus judicial proceedings could become more costly and protracted under the new law.
The UNC Board of Governors has already tweaked its policy to allow students legal representation to conform with the legislation. But campuses are now studying their campus conduct rules and procedures or potential changes, to see how they may need to be changed, Shanahan said.
“The concern was that the way the student conduct process developed throughout higher education has typically not involved attorneys,” Shanahan said.
On Monday, the issue seemed to be a stumbling block to a UNC- Chapel Hill task force overhauling the university’s sexual assault policies and procedures. The panel was launched as the university is under investigation by the federal government for its reporting and handling of sexual misconduct cases.
Members of the group said they wanted to contemplate a “restorative justice” as one solution, in which the needs of victims and accused would be met, yet offenders would take responsibility for wrongdoing.
That won’t happen if students get “lawyered up,” task force members reasoned.
“Now that we inject lawyers, it’s going to be adversarial,” said George Hare, deputy chief of the campus police.
Others say allowing legal representation in hearings will undoubtedly lead to inequity because some students won’t have money for lawyers.
will have the money for lawyers, while others won’t.
Andrea Pino, a UNC- CH student and one of five women who filed the federal complaint against the university, said surviving a sexual assault is difficult enough without scrambling to hire a lawyer.
“Although this law offers an ideal – a process in which both parties would have the right to equal protection and support – it ignores the economic difficulties that a survivor would have to endure to retain an attorney if his or her assailant does so,” Pino wrote in an email. “Struggling with record student loan debt and tuition hikes, the last thing that a survivor needs is to have to deal with the hurdle of legal fees instead of focusing on their own healing.”
But Shibley said universities need to be held accountable for their judicial proceedings. Students can quickly become overwhelmed when they walk into a hearing where they are accused by administrators, he said, and the consequences of a guilty finding can be severe.
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