College students deserve the right to hire counsel in expulsion hearings

Prior to the law’s passage this August, students at North Carolina’s public colleges and universities routinely faced discipline—including suspensions and expulsions—upon the result of verdicts reached in campus hearings that fall woefully short of providing meaningful due process protections. By providing students the right to hire a lawyer to represent them in these hearings, North Carolina has taken an important step towards leveling the playing field.

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Ensuring that campus disciplinary hearings are fairly conducted is critically important. The stakes at these hearings can be extremely high. Suspensions and expulsions don’t simply jeopardize a student’s education—they can end a young person’s career before it has even begun. After all, how many schools are lining up to admit students who have been expelled from another institution? My guess, from having served on admissions committees myself, is not too many.

And when accusations against a student implicate potential criminal liability, the Fifth Amendment is implicated too. After all, anything said during a campus proceeding can be admitted into evidence and used against a student at a future criminal proceeding. Without a lawyer in the room, students have no idea that they may be waiving their Fifth Amendment rights to their detriment.

For first-generation students, the stakes are even higher. For them, their livelihoods and the dreams of their families are on the line. Legal representation during a campus hearing could literally make a difference that will last a lifetime.

Prior to this new law, students facing lengthy suspensions or expulsions typically faced these charges alone—or, if lucky, with an advisor who was nevertheless forbidden from actively participating in the hearing. Outside of North Carolina, eighteen-year-old students continue to be expected to competently represent themselves in proceedings, arguing against deans, administrators, and sometimes lawyers, many with decades of experience and advanced degrees. There is no way to make such a system fair to the accused without the right to representation.

Under broken systems where students are forced to defend themselves without legal counsel, inexcusable and avoidable mistakes have been made. Since the Foundation for Individual Rights in Education (FIRE), where I work, opened its doors nearly 15 years ago, we have seen numerous examples of students railroaded and even expelled in proceedings that would offend any neutral observer’s sense of justice. For example, the University of North Dakota expelled Caleb Warner after finding him guilty of sexual assault. The case made national headlines when the university refused to overturn the expulsion despite overwhelming evidence of his innocence—evidence that not only led the local police department to refuse to bring charges against Warner, but actually prompted the local prosecutor’s decision to bring charges of filing a knowingly false report against his accuser. Of course, Warner was not permitted to have a lawyer during his expulsion hearing.

Giving college students the right to hire lawyers in these hearings is groundbreaking, but not unprecedented. Congress has long viewed a person’s interest in continuing his or her education as one worth protecting, granting K-12 students with disabilities the right to legal representation in the Individuals with Disabilities Education Act. States like California, Florida, Georgia, Massachusetts, Minnesota, and a host of other states have similarly passed statutes extending the right to hire counsel to students in in all K-12 expulsion hearings.

North Carolina is the first of what FIRE hopes will be many states that will choose to provide their college students with this basic but crucial right. Despite opposition from North Carolina’s higher education industry, the right to counsel bill enjoyed overwhelming bipartisan support. In the state’s House of Representatives, the measure passed by a margin of 112 to 1.

It’s long past time to recognize that procedural safeguards like the right to counsel are necessary to prevent injustices like the one suffered by Caleb Warner. It is time for other states—and, ultimately, for Congress—to follow North Carolina’s lead by providing college students the right to hire lawyers to defend them in suspension and expulsion hearings. Fundamental fairness demands no less.

Cohn is the Legislative and Policy Director for the Foundation for Individual Rights in Education.