In North Carolina's "Right to Counsel" Bill, Far Less Than Meets the Eye

The “Dear Colleague” letter (about which I’ve frequently written over at MTC) featured a three-pronged assault on the due process rights of college students accused of sexual assault. First, it ordered colleges to adjudicate such matters through a “preponderance of evidence” (50.01%) standard, thereby dramatically increasing the likelihood that innocent students will be branded rapists by their schools. Second, it forced colleges to institute a double jeopardy scheme that allows accusers to appeal not-guilty findings even under the reduced threshold. Finally, it strongly encouraged colleges to deny accused students the right to cross-examine their accusers—even though in claims of acquaintance rape, the accuser might be the only witness against the accused.

As hostile to due process as the “Dear Colleague” scheme is, however, the document at the very least didn’t explicitly deny the right of accused students to be represented by counsel in disciplinary proceedings. A cynic might say the letter didn’t have to issue such a mandate, since most colleges already bar lawyers from their disciplinary processes.

This oversight, however, provides an opening (at least at public universities) for state legislatures to restore some semblance of due process for students accused of sexual misconduct. Nothing in the “Dear Colleague” letter prevents state legislatures from passing laws ordering public universities to let accused students have full, robust legal representation. And given the sudden, bipartisan interest in due process amidst the IRS and AP subpoena “scandals,” the political environment is unusually suitable for politicians to act.

In April, seeking to safeguard student rights on campus, four North Carolina state representatives (Republicans John Bell and Jonathan Jordan, Democrats Rick Glazier and Nathan Baskerville,) served as lead sponsors for a measure called the Students & Administration Equality Act.

The bill contained only one clause, entitled “Student disciplinary proceedings – student’s right to counsel,” and provided a much-needed reform on behalf of due process. It held that “any student enrolled at a constituent institution or student organization at a constituent institution that is accused of a violation of the disciplinary or conduct rules of the constituent institution and that wants legal representation may be represented by an attorney during any formal stage of any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the charge of misconduct against the student or student organization.”

The bill was referred to the House Education Committee, where it languished for a month. Last week, it was withdrawn from the committee and referred instead to the Rules Committee, which substantially rewrote the bill. Though still promising a “right to counsel for students and organizations” in disciplinary proceedings, the measure actually does no such thing.

Here’s the new text, with the relevant sections gutting due process in bold:

“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or non-attorney advocate in either of the following circumstances:

(1) If the constituent institution has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.

(2) For any allegation of ‘academic dishonesty’ as defined by the constituent institution.”

The amendments to the bill have so altered the original measure to render it meaningless.

First, the bill no longer provides a “right to counsel,” at least as the word is commonly understood (an attorney). Instead, the bill requires colleges to allow students to be represented by an attorney or by a “non-attorney advocate.” In short, all the bill envisions is codifying the ways in which universities give a phony sense of due process by suggesting that an “advocate” (a faculty member, a fellow student, even a family member) can safeguard a student’s rights even if lawyers are excluded from the disciplinary proceedings. Despite the now-misleading title, no student facing charges before a college disciplinary tribunal in North Carolina will gain the “right to counsel” if the amended bill passes.

Second, even the gutted “right to counsel” doesn’t apply if the school “has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.” This provision, if construed broadly, would seem to exempt every disciplinary proceeding at a North Carolina public university except for one—the University of North Carolina’s recently-adopted sexual misconduct procedure, one of the earliest responses to the “Dear Colleague” letter. (UNC formally set up a two-tier system of campus justice in which students accused of sexual assault would both be judged by a lower standard than students accused of other offenses on campus, and would have their cases heard not by students but by a specially “trained” panel of . . . sensitive . . . administrators and students.)

Even at UNC, however, the law wouldn’t require students accused of sexual misconduct to be represented by a lawyer, only by a “non-attorney advocate.” And that “right” already exists: an accused student receives an “advisor”to assist “with pre-hearing procedures and the presentation of witnesses and evidence at the hearing or at any subsequent proceedings. Only currently enrolled students or employed staff members of the University shall serve as advisors to the parties.” And that “advisor”—or “non-attorney advocate,” in the bill’s language—can’t do much once the hearing begins, since a student accused of sexual assault, or his “advisor,” “shall not have the right to question another party; however, each party may submit proposed questions to the panel for panel members to ask of the other party if the panel members determine, in their sole discretion, that the proposed questions are designed to elicit relevant information.”

To review: the amended bill won’t provide any accused student in North Carolina a right to counsel; it won’t even apply to most disciplinary processes at North Carolina’s public colleges and universities; and it will have no effect on the one procedure (UNC’s new sexual assault standards) to which it clearly would apply.

Last week, the North Carolina House of Representatives passed the bill by a margin of 112-1, with only Wake County Republican Jim Fulghum voting no. The measure currently awaits action in the Senate.

The upper chamber should reject the bill, and if the bill passes, Governor McCrory should veto it. Not only is the measure, as currently constituted, meaningless, a strong case could be made that the bill is harmful, because it creates the false impression that a “right to counsel” exists when, in fact, no such right is present.