Aug 252013

I had been wanting to get back to blogging this week in the midst of working on several projects, but I wasn’t too motivated to make it a priority until I caught this little gem in the news. This comes to us from our friends at the Foundation for Individual Rights in Education (FIRE):

This week North Carolina Governor Pat McCrory signed a bill granting public university students in the state facing non-academic disciplinary charges the right to an attorney. The law, which is the first of its kind nationwide, ensures that students attending the state’s public colleges and universities possess rights similar to those already enjoyed by North Carolina’s K–12 students under state law. The Foundation for Individual Rights in Education (FIRE) worked with a bipartisan group of state legislators to enact the protection into law.

“Students across America are regularly tried in campus courts for serious offenses like theft, harassment, and even rape. Being labeled a felon and kicked out by your college carries serious, life-altering consequences. Because the stakes are so high, students should have the benefit of an attorney to ensure the hearing is conducted fairly and by the rules,” said FIRE Senior Vice President Robert Shibley. “We are immensely gratified that the legislature and governor of North Carolina have taken this critical step in giving students a fair chance for justice.”

Since I don’t personally know Robert Shibley, I will withhold any opinions I may have have formed about him by virtue of reading this story. And I would call Mr. Shibley’s comments uninformed, but I highly doubt that Mr. Shibley is uninformed. Therefore, I can only surmise that Mr. Shibley’s comments are intentionally deceptive, and that he has pulled a fast one on state politicians in North Carolina. Given some of the other interesting pieces of legislation that have come out of the Tar Heel state (see the recent pieces of legislation on voting restrictions [worst voter suppression law in the nation], ending Sharia law [talk about a solution without a problem], and allowing the concealed carry of weapons in bars [because that couldn’t possibly go wrong]), I can’t claim that it is hard to mislead that state’s politicians, especially when they seem to want to be misled. So let me take a moment, albeit after the fact, to offer a lesson in higher education and the law, that legislators in North Carolina either missed, ignored, or were deprived of.

Many in higher education know the following quote from The General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline at Tax Supported Institutions of Higher Education authored by the Western District of Missouri in 1968. The famous quote reads:

The discipline of students in the educational community is, in all but the case of irrevocable expulsion, a part of the teaching process. In the case of irrevocable expulsion for misconduct, the process is not punitive or deterrent in the criminal law sense, but the process is rather the determination that the student is unqualified to continue as a member of the educational community. Even then, the disciplinary process is not equivalent to the criminal law processes of federal and state criminal law. For, while the expelled student may suffer damaging effects, sometimes irreparable, to his educational, social, and economic future, he or she may not be imprisoned, fined, disenfranchised, or subjected to probationary supervision. The attempted analogy of student discipline to criminal proceedings against adults and juveniles is not sound (emphasis added).

In the lesser disciplinary procedures, including but not limited to guidance counseling, reprimand, suspension of social or academic privileges, probation, restriction to campus and dismissal with leave to apply for readmission, the lawful aim of discipline may be teaching in performance of a lawful mission of the institution. The nature and procedures of the disciplinary process in such cases should not be required to conform to federal processes of criminal law, which are far from perfect, and designed for circumstances and ends unrelated to the academic community. By judicial mandate to impose upon the academic community in student discipline the intricate, time consuming, sophisticated procedures, rules and safeguards of criminal law would frustrate the teaching process and render the institutional control impotent.

Of course, in response to this commentary, I would offer the perspective that even expulsion (or permanent dismissal) of a student is educational, if that student utilizes the termination of the relationship to address behavioral issues (and often psychological and/or physical dependency issues) that led to their termination. And dismissal is certainly educational to other members of the educational community who are aware of the behavior and who see the consequences that the behavior brings.

What is also contained in this historic document is a reminder of the nature of the relationship between the institution and the student. The Court wrote:

Attendance at a tax supported educational institution of higher learning is not compulsory. The federal constitution protects the equality of opportunity of all qualified persons to attend. Whether this protected opportunity be called a qualified “right” or “privilege” is unimportant. It is optional and voluntary.

The voluntary attendance of a student in such institutions is a voluntary entrance into the academic community. By such voluntary entrance, the student voluntarily assumes obligations of performance and behavior reasonably imposed by the institution of choice relevant to its lawful missions, processes, and functions. These obligations are generally much higher than those imposed on all citizens by the civil and criminal law. So long as there is no invidious discrimination, no deprival of due process, no abridgement of a right protected in the circumstances, and no capricious, clearly unreasonable or unlawful action employed, the institution may discipline students to secure compliance with these higher obligations as a teaching method or to sever the student from the academic community.

The Court went even further on the issue of the right to an attorney in the student conduct process, noting:

 There is no general requirement that procedural due process in student disciplinary cases provide for legal representation, a public hearing, confrontation and cross-examination of witnesses, warnings about privileges, self-incrimination, application of principles of former or double jeopardy, compulsory production of witnesses, or any of the remaining features of federal criminal jurisprudence. Rare and exceptional circumstances, however, may require provision of one or more of these features in a particular case to guarantee the fundamental concepts of fair play. It is encouraging to note the current unusual efforts of the institutions and the interested organizations which are devising and recommending procedures and policies in student discipline which are based on standards, in many features, far higher than the requirements of due process. Joint Statement on nights and Freedoms of Students, 54 A.A.U.P. Bulletin No. 2, Summer 1968, 258, a report of a joint committee of representatives of the U.S. National Students Association, Association of American Colleges, American Association of University Professors, National Association of Student. Personnel Administrators , National Association of Women Deans and Counselors, American Association of Higher, Education, Jesuit Education Association, American College Personnel Association, Executive Committee, College and University Department, National Catholic Education Association, Commission on Student Personnel, American Association of Junior Colleges; University of Missouri, Provisional Rules of Procedure Student Disciplinary Matters.

Many of these recommendations and procedures represent wise matters of policy and procedure far above the minimum requirements of federal law, calculated to ensure the confidence of all concerned with student discipline.

It is interesting to note that this opinion was rendered well before the rise of the student conduct profession and the establishment of the Association for Student Conduct Administration (ASCA). In the years since, campus conduct processes have evolved significantly, and have continued to provide more due process for students than is required by law. That’s right, nearly every college or university in the nation provides due process that is in excess of what is required under the law.

But that’s not even the most important distinction that must be made with regard to this legislation. Let’s hearken back to Mr. Shibley’s own words:

“Students across America are regularly tried in campus courts for serious offenses like theft, harassment, and even rape. Being labeled a felon and kicked out by your college carries serious, life-altering consequences. Because the stakes are so high, students should have the benefit of an attorney to ensure the hearing is conducted fairly and by the rules.”

Where do I even begin to address the inherent dishonesty of his remarks? Well, let’s begin with the most basic distinction that Mr. Shibley fails to acknowledge; campus conduct processes are not qualified to conclude that a student’s actions violated the law. Ever. Similarly, no court is qualified to tell an institution of higher education whether or not a student has violated the published standards of the academic community. Thus, the idea that a campus can label a student a “felon” is laughable, unless the student has actually been convicted of a felony in a court of law, in which case the label applies.

To be fair to Mr. Shibley, he is not the only one to fail in acknowledging this distinction. In my own professional practice, I have seen State’s Attorneys and District Attorneys refuse to prosecute cases and then tell the media that they were declining prosecution because the cases were being handled by a campus conduct process. It’s a convenient, if not wholly unprofessional justification for people not to do their jobs and then use the campus conduct system, for good or for ill, as a reason for their decision.

Mr. Shibley also talked about the stakes. So let’s take him up on that conversation. Colleges and universities have no ability to deprive students of rights granted to them under the Constitution of the United States of America. The most severe thing an institution can do is to permanently dismiss a student, commonly referred to as expulsion. The last I checked, that was a far less serious outcome than a deprivation of life or liberty. Advocates of FIRE’s perspective offer the fallacy of a property interest, but the General Order was clear about the arrangement and relationship between student and institution. Further, there is no right to a higher education in the United States of America, and even if there were, there is certainly no right to a degree from a particular institution. There are more than four thousand degree granting institutions in the United States; being expelled from one may well be a costly and inconvenient lesson, but it should not result in the shifting of our campus conduct systems into criminal-esque and adversarial proceedings, for reasons so eloquently articulated forty-five years ago and still just as relevant.

Once again to be fair, the North Carolina university system had previously prohibited the attendance of attorneys in student conduct matters. This was a somewhat puzzling rule, as Osteen v. Henley (13 F.3d 221) established that while there is no cause for an institution to allow an attorney to participate in campus proceedings, the advice of an attorney may be wise in order to protect the student’s interests in the criminal process. As a result, many institutions have adopted a more pragmatic approach of allowing a student to bring an attorney for the purpose of observing the campus conduct process and offering advice to a client; I routinely adjudicate cases involving attorneys in this manner, and empathize with the student’s need to consider  the implications of participating in the campus conduct process, particularly when facing serious felony charges in the criminal process. None the less, rather than passing a law guaranteeing students the right to counsel in any campus conduct proceeding, it would have made sense to strike down the old rule and fashion a more sensible and practical policy. Instead, the legislators of North Carolina have invited the junior Jack McCoy’s of the world, who believe they “know” their rights after watching hundreds of Law and Order episodes, to bring in a lawyer over alcohol possession cases or incidents involving public urination. Don’t think it will happen? When I worked in student conduct at Georgetown University, I advised disciplinary proceedings in which one of the District of Columbia’s biggest ambulance chasers attended and took copious notes, feeding the student with detailed statements and lists of exhaustive questions that served to turn what should have been an hour long proceeding into a six hour hearing. The great offense under review? A roommate conflict in which residents were counter charging each other for making harassing comments towards one another because one of the roommates failed to clean the bathroom. In truth the case should have gone to roommate mediation, but the attorney would have none of that for his client. Unfortunately, that is the more likely outcome of this short-sighted law.

Within the student conduct profession, we are now weighing the potential impacts of this law for our colleagues in North Carolina. One natural side effect will be the introduction of campus attorneys into these proceedings, as a counter to private attorneys. While Brett Sokolow of the National Center for Higher Education Risk Management (NCHERM) has stated his hope that campuses will not respond in this way, my own guess is that campus general counsels in North Carolina may not allow a choice. In my own experience in working with campus attorneys, they feel a need to be in the room when another attorney is present. In some cases, this is to send a message that campus processes will not be bullied, and in other cases it is to hawk the proceedings themselves as a means for insuring that the institution complies with its own procedures, thereby mitigating the potential risk of a lawsuit . I concur with Mr. Sokolow that most campus conduct officers I know can “handle” any attorney that attends these proceedings, but our lawyers are typically operating in prevention mode, seeking to eliminate or reduce institutional liability. And thus the escalation of lawyers will likely continue, yet it will yield no true benefit for students or for our academic communities.

Shibley said the law was necessary because campus conduct processes are not “shining examples of justice,” calling upon a case in North Dakota to illustrate his point. And it is there that we get back to the entire farce upon which FIRE is founded; the same tired one trick pony that has been manifesting itself since  Alan Charles Kors and Harvey Silverglate wrote The shadow university: The betrayal of liberty on America’s campuses, in which the authors cherry-picked a handful of poorly handled cases (and only their version of those cases) and tried to propagate the myth that all campus conduct systems are unfair, utilizing double standards and depriving students of due process. This lack of honesty also manifested itself in the allegation that the use of a preponderance test for sexual misconduct, sexual harassment, and relationship violence cases was somehow a change for most campuses after the publishing of the Dear Colleague Letter, when in fact a strong majority of college campuses were already using this standard and had been doing so since due process was defined in the 1960s. And so the dishonesty continues, with FIRE insisting that the presence of attorneys will somehow make our student conduct processes fairer for students. With the exception of a handful of cases each year in which students have a legitimate need to weigh their participation in the campus process against their interests in the criminal process, the result will only be longer hearings and a process where any educational value is lost to the Millennial sense of entitlement.