A recent article in The Cavalier Daily misses key points about three tabled Virginia House bills that would have allowed students accused of non-academic misconduct at Virginia’s public colleges to hire attorneys for campus hearings.
Most importantly, lawyers can ensure students receive their right to due process. Consider students accused of sexual misconduct, who face the most serious repercussions and the least fair hearings. Expelled students face tens of thousands of lost tuition dollars, difficulties applying to other institutions or jobs and the stigma of being labeled a rapist — irreversible harm that remains even when they are later exonerated. Statements made by students in campus tribunals are admissible against them in criminal hearings, which can end in lengthy prison sentences. Of course, these results are appropriate for students properly found guilty. But some students are innocent — and all students are entitled to a fair hearing. A lawyer’s participation helps ensure that student rights are preserved.
Nevertheless, University students testified against the bills.
The University’s Honor Committee Chair said his “primary worry is the implications for student self-governance.” Students may run the system, but it cannot function without oversight. Like many citizens, students often have limited knowledge of their legal rights. Asserting that students can’t benefit from the expertise of professionals is naive and dangerous.
University students argued lawyers are unnecessary because the University Judiciary Committee already protects due process. But even if the UJC operates fairly, this does nothing to protect students facing the most severe consequences — those accused of sexual assault — because the UJC doesn’t adjudicate those cases. In fact, the University is proposing to leave many critical decisions in sexual misconduct cases in the hands of a single authority. Everyone makes mistakes and has biases, admittedly or unconsciously. So appointing just one person as a potential detective, prosecutor, judge and jury is unacceptably reckless.
And what about students at other institutions throughout the Commonwealth? What about the University in years to come, when policies may change or be administered differently? These bills would have ensured that no matter what the rules are — and no matter who is applying them — accused students could secure protection.
One UJC member opined that allowing students to hire attorneys would be unfair to those who couldn’t afford one. But no reasonable person would argue we should bar private attorneys from the criminal justice system because not all defendants can afford them. And concerned students could ensure all have access to representation by allocating mandatory student activity fees, or a portion of the Honor Committee’s multi-million dollar endowment (from which its own lawyer is already paid), to a legal defense fund.
Another argued this legislation would necessitate the University hiring representation, as well. But unlike the accused student, an institution’s future (or its funding) is not threatened by an adverse outcome in each case.
Allowing students accused of code violations to obtain meaningful representation will help prevent a flawed system from derailing an innocent student’s life.
University of Virginia School of Law, 2011
Program officer for the Foundation for Individual Rights in Education