Legislators questioning campus-discipline process

Jul. 19, 2013 @ 06:15 PM

Competing “regulatory reform” bills proposed by the state House and Senate suggest legislators want to change or at least scrutinize the way the UNC system is handling student disciplinary hearings.

One of the bills, passed by the Senate on Friday, would authorize a legislative study of the issue, to look among other things at a student’s right to counsel in the hearing process.

The other, passed by the House on July 11, would intervene directly and spell out those rights.

It would allow a student to be represented during a hearing by a licensed attorney or “non-attorney advocate,” except if a case involves academic dishonesty or a school has “implemented a ‘student honor court’ which is fully staffed by students.”

The issue is on the General Assembly’s plate thanks to Rep. John Bell, a Wayne County Republican, who says legislators need to deal with the “kangaroo court situation we have” on a number of campuses.

Bell said he got interested after learning of a case involving a couple of fraternities at UNC Wilmington that seemed to him to have been handled in an arbitrary way.

The House freshman responded in April by filing a bill that said a student could seek representation from an attorney “during any formal stage of any disciplinary procedure” he or she may become embroiled in.

The measure was later softened, at the UNC system’s request, to include the exceptions for academic dishonesty cases and student-staffed honor courts. Bell said he agreed to the changes in hopes system leaders would support the bill.

“And of course, they would not,” he said.

UNC system spokeswoman Joni Worthington confirmed system leaders aren’t supporting the measure.

“Throughout the session, we’ve reiterated with legislators our belief that [existing] processes work and shouldn’t be changed,” she said. “Disciplinary hearings are not judicial proceedings.”

As modified, Bell’s bill cleared the House on May 15 by a vote of 112-1, after receiving exactly 2 minutes of floor debate during roughly an 8½ hour session of the House.

The measure later stalled in the Senate, so to make sure it received consideration, Bell had it added to another, leadership-supported regulatory reform bill that deals mostly with environmental and land-use matters.

Sponsors of the larger bill termed it a “consensus” proposal supported in both chambers, but events proved otherwise. The Senate’s vote Thursday was on a competing package that omitted or changed several things the House wants.

The student-discipline process has been in the headlines lately because of complaints that UNC Chapel Hill has mishandled cases involving allegations of sexual misconduct. The school is now facing a trio of U.S. Department of Justice investigations stemming from the controversy.

On a parallel track, the N.C. Supreme Court is mulling a case that asks it to force private universities to honor any written procedural safeguards promised to students, just as UNC and other public schools have to.

Bell’s proposal only addresses the UNC system, not private universities.

Two lawyers involved in the recent disputes, Bob Ekstrand and John Gresham, say there’s reason for legislators to take an interest.

“What’s at stake in these university hearings and disciplinary proceedings is enormous for the students involved,” Ekstrand said, who’s pushed the issue in a series of lawsuits involving Duke University. “The reputational harm to being suspended or disciplined is pretty significant.”

But Ekstrand voiced qualms about the UNC-requested qualifiers regarding student-staffed courts and academic dishonesty cases, as “those are exceptions that completely swallow the rule” Bell initially proposed.

He added they could “run into constitutional problems pretty fast” if judges think they foreclose a student’s right to have counsel present when a campus case has potential fallout in off-campus criminal or civil courts.

Gresham, who’s represented a student accused at UNC Chapel Hill of sexual misconduct, said procedural rules in the UNC system are fractured. Some rely heavily on student courts, while others lean more heavily on hearing panels that mix students, faculty and staff.

“You’ve got 16 campuses now, and my guess is you’ve got 16 different procedures,” Gresham said.

Mixed-membership panels more commonly are the choice when a case involves allegations of sexual misconduct, as now is the case at UNC Chapel Hill, or where a student is at risk of suspension or expulsion, as at N.C. Central University.

Gresham took it as a given the House bill would mean a student could be represented by a lawyer in hearings conducted by mixed-membership panels.

“In its present configuration, it would be a good piece of legislation because it is very important in these sexual-misconduct cases that there be a very careful review of the allegations,” he said.

UNC system policy requires campuses to spell out in their disciplinary rules whether an attorney can attend or represent a student during a hearing.

But representation or assistance of a student by a lawyer in most instances “is neither required nor encouraged,” the policy says.

The only exception to that is for cases where a student also faces off-campus criminal charges.

There, campuses must allow an attorney to attend a hearing, and allow students to consult an attorney. But the attorney may not question witnesses or address the hearing panel.