COHN: The merit of Morris

University students should support legislation which would allow professional counsel to protect their civil rights

Students in Virginia’s public colleges and universities routinely face lengthy suspensions and expulsions if found responsible for serious charges of criminal activity in on-grounds hearings. Despite the gravity of the charges and the life-long consequences that may result, most of Virginia institutions deny accused students the right to hire and be represented by an attorney. That unfair dynamic will change if the legislature enacts HB 1123.

The Cavalier Daily recently ran an editorial opposing this common-sense bill, but the arguments lack merit.

The managing board opposed the bill in part because it exempts students facing academic charges — like dishonesty or plagiarism — from its coverage. The managing board notes that the consequences in those cases are equally severe. While it is true that the consequences may be similar if a student is found responsible for academic charges like cheating or plagiarism, courts have historically and correctly found that educators — not lawyers and judges — are best equipped to recognize cheating and to set academic standards. The same cannot be said when a panel is deciding whether a student is guilty of serious misconduct like aggravated or sexual assault. The severity of the sanction is an important factor, but the competency of the deciding panel is equally important. The legislation properly accounts for this distinction.

Another argument The Cavalier Daily asserted against this bill is equally misplaced. According to the managing board, “Students have the power to decide who they want and who they don’t want to be members of their community. To give a circuit court the power to reverse a decision to expel a student is to force the University to take back a student who has been determined by his peers to be unwelcome in their community.”

First things first: Even without this legislation, Section 1983 of the Civil Rights Act allows students to sue in federal court for due process violations. To date, courts have largely deferred to university decisions, except for instances when the student has demonstrated that the institution’s findings were arbitrary, capricious or otherwise contrary to law. HB 1123 would simply codify that this is the appropriate standard and make clear that in addition to federal court, the student could also choose to bring his or her action in state court.

But setting aside the legal point, students at public universities should not be empowered to decide “who they want and who they don’t want to be members of their community” when those decisions are made based on the viewpoints of the student in question or when that decision is the result of an unreliable process. The First Amendment and the various amendments that provide for due process unequivocally prohibit that.

If universities throughout the state were providing adequate due process protections in
suspension and expulsion hearings, HB 1123 might not be necessary. But that is not the case. Not only are institutions forbidding accused students from having attorney representation, the Foundation for Individual Rights in Education (FIRE), where I work, has received credible reports that some institutions are turning the transcripts of the hearings over to prosecutors.

Remember, anything a student says in campus hearings is admissible in criminal courts. Without a lawyer, students are unknowingly waiving their Fifth Amendment rights. A student representative does not have sufficient expertise to recognize where essential rights are implicated. They are not an adequate substitute for a licensed attorney.

Students at the University should support this bill, and — whether it passes or not — demand the right to hire counsel for on-campus hearings. Until they are afforded this right, University students will continue to be subject to procedures that place their educations and futures up to gamble.

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

Published February 4, 2014 in Opinion

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