Should colleges be required to let students use lawyers in campus disciplinary proceedings?
That question sparked heated debate here this week as federally appointed negotiators drafted rules to carry out the Campus Sexual Violence Elimination Act. At issue was a proposal that would allow students who report or are accused of a sexual assault to have an “advisor of their choice” by their side as their case plays out. At the end of the day on Tuesday, that proposed rule was largely adopted.
Amid comments from the negotiators and from the public, victims of assaults said they would feel safer with an adviser present for meetings—including hearings—tied to an investigation. Accused students said having a lawyer there would give them a fairer shake. Administrators, meantime, worried that letting lawyers in would introduce inequities—and force some colleges to drastically change how they run their disciplinary proceedings.
Dana Scaduto, general counsel at Dickinson College, called the adviser proposal “the single most problematic provision” in the draft of the rules. It would mark a major shift, she said, in how private institutions in particular handle sexual-assault cases, which colleges are required to resolve under federal civil-rights law.
Some students might be able to afford lawyers, while others could not, said Ms. Scaduto, a past president of the National Association of College and University Attorneys. Even if colleges followed a “potted-plant rule"—permitting lawyers to be present at hearings, but not to participate—the dynamic would change completely, she said.
Private colleges especially, she said, have a prerogative in deciding who gets to take part in their disciplinary proceedings.
But at the outset of the discussion on Tuesday, Gail McLarnon, the negotiator for the Department of Education, was firm. “The department is pretty wedded to this language,” she said. “We believe the statute is pretty straightforward. We will entertain some discussion and some minor changes, but we feel pretty strongly about this.”
‘I Was Guilty Automatically’
In considering changes, negotiators wrestled with a host of questions. What happens when law-enforcement proceedings coincide with campus discipline, as sometimes happens at small colleges? If one student can afford to hire a lawyer, and the other can’t, would the college have to provide an adviser?
Some members of the public strongly favored the involvement of lawyers in campus hearings. Among them was Joshua Strange, who was expelled from Auburn University after being found responsible for sexual assault. (A grand jury later declined to indict him.)
“The way the system was set up,” he said of the campus process, “I was guilty automatically.” Mr. Strange urged the negotiators to support the use of advisers: “You have no idea—no idea—what kind of difference that can make.”
After some tense exchanges, the negotiators agreed to keep the provision in the proposed rules, with a slight modification.
An adviser of the student’s choice would be able to accompany those on either side to any meetings. Colleges would not be allowed to limit the choice of adviser or restrict that person’s presence to some meetings but not others. What institutions would be able to control is the extent of the advisers’ participation in any proceedings—as long as the restrictions applied to both parties.
Colleges or Courts?
As colleges scramble to satisfy federal requirements for policies and procedures on sexual misconduct, campus conduct systems have taken on some characteristics of the judicial system. Pressure to move in that direction—federal and state requirements, student activism, White House scrutiny—has only intensified.
Under a law passed last year in North Carolina, any student at a public college who is accused of a disciplinary or conduct violation has the right to be represented, at his or her expense, by a licensed lawyer or a “non-attorney advocate.” That representative can fully participate in any part of the disciplinary process.
The law, believed to be the first of its kind, does not apply to students accused of “academic dishonesty,” or at colleges that use student honor courts. Lawmakers in Virginia pushed for a similar measure this year, without success.
In campus sexual-assault proceedings, the benefits of having lawyers involved can outweigh the risks, said Gary Pavela, a consultant to colleges on law and policy. “You will have someone in the room from either perspective that will try to articulate the issues as clearly and rationally as possible,” he said. That approach may be productive, he said, preventing hearings from falling apart when emotions run high.
“We are facing a crisis of legitimacy in the student-conduct process,” said Mr. Pavela, who for many years led the student-conduct system at the University of Maryland at College Park. Complainants feel the system is stacked against them; respondents feel they’re scapegoats, he said. “We have got to be able to show that we can resolve these cases equitably to both sides.”
Elusive Neutrality
Colleges may look to—or be pointed to—the judicial system for guidance on handling sexual-assault cases. But during the rule-making process this week, some negotiators argued that the two approaches are not interchangeable.
Ms. Scaduto, for instance, urged the department not to use the term “alleged crime” to refer to a campus report of sexual assault.
Colleges and universities do not adjudicate crimes, she said. “When we come out at the end of our hearings, we have not converted an alleged crime into a crime,” she said. “If you want a conviction, you have to go to the county courthouse.”
Disciplinary hearing boards, which often include students, aren’t the same as juries, said Nancy Chi Cantalupo, a research fellow at the Victim Rights Law Center. While the jury system relies on judgment by a group of peers, she said, students probably shouldn’t serve on hearing boards, because in small communities, neutrality is often elusive.
“Schools don’t have the ability to do what we do in terms of juries,” Ms. Cantalupo said. “We can’t locate a case somewhere in a court across the country where you can select jury members who know nothing about the case.”
The rule-making process concluded on Tuesday with the negotiators having reached consensus on proposed regulations. Once they are published in the Federal Register, in the next few months, the Education Department will collect public comments before issuing final rules.
