Friday Interview: Legislators Help Protect College Students’ Rights

Reforms in education, regulation, and the state tax code all generated bigger headlines. But the Foundation for Individual Rights in Education is publicizing another accomplishment from the 2013 session of the N.C. General Assembly. Robert Shibley, senior vice president of FIRE, discussed the issue with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

Kokai: The issue that you’ve highlighted is one that deals with students at colleges and universities in North Carolina and some additional protections they have when they have to deal with the university in what would normally be considered a legal proceeding. Tell us what changed.

Shibley: That’s right. Well, for the first time, North Carolina actually became the first state to guarantee students who are accused of crimes on campus the right to counsel in those campus tribunals. So if you’re accused on campus of anything from theft to assault to rape, right now, virtually every university will put you on their own sort of campus trial for those offenses, as well as sometimes turning it over to the local law enforcement.

But up until North Carolina passed this law … virtually no university let you have an attorney represent you, even though you are being adjudicated for these serious offenses that, off campus, are often felonies. So North Carolina really took a bold first step to make sure that students who are accused of those crimes get fair representation.

Kokai: Now, let’s be fairly clear about this. Someone who is charged in their local community and has to go through the court system, they would have a lawyer in that situation, but not for something that’s adjudicated on campus?

Shibley: That’s correct. If you are accused of any crime in the real court system, you are entitled to an attorney — not only to be able to hire your own attorney, but to an attorney even if you can’t afford one; one has to be provided for you. This law is not as ambitious as that. All it says is that if students are accused of crimes on campus, they can, at their own expense, hire their own attorney to represent them.

Kokai: Without this law, how did the process work?

Shibley: Well, the process actually won’t change with the new law. The universities act, in many ways, kind of like city-states, where they have, you know, control over their students’ behavior. They put them through what their 18- or 19-year-old peers who aren’t on campus — they only have to answer to the police and the normal court system — whereas university students have to answer to both.

And so they’ll put them through hearings. They have certain procedures. They have investigations. They go through witnesses and cross-examination, and they come to a verdict. And then there’s a sentence, which, on the university scheme, can really only be, at its most severe, suspension or expulsion.

But more important than that even is the mark on your record that you’ve been found guilty of one of these crimes. And they never say guilty. They say responsible. But somebody reading your transcript is going to say, “Oh, you were found responsible for theft. You are responsible for sexual assault.” And, you know, good luck getting a job, a government job particularly, into law school or any sort of graduate school or even transferring to another school with something like that on your transcript.

So these adjudications, while they obviously don’t put you in peril of your liberty in the way that a court does, they do affect the course of your life. And too many times we’ve seen universities aren’t paying enough attention, not only to what we would all consider to be fair or due process, like the right to confront your accuser — some universities don’t even give you that — but they don’t even pay any attention to the rights they themselves have guaranteed.

And so we hope that lawyers introduced in the process to advance the interests of the accused will be able to come and say, “Wait a minute, you know, we didn’t really get notice of this charge. What are we being charged with here? Where are the witnesses? This is not supposed to be admitted into this tribunal.”

Right now, 18- or 19-year-old students are up there against the lawyers the university is free to bring, and really have no idea what they’re doing and are in there determining the course of their life.

Kokai: You just touched on this at the end of the last answer, but we’re talking, in many cases, about 18- and 19-year-olds, just barely considered adults, and they are expected, under the old rules, to be able to deal with complicated legal matters. I imagine that there are a lot of students, and especially parents, out there who are going to be happy to learn that now a trained attorney can be brought into the process if necessary. How’s that going to help the situation?

Shibley: Oh, yeah, I think that there will be a lot of relief among those people who are accused. Again, you know, even having an attorney for the couple hours of your hearing could make the difference between you being able to continue in the career that you want to pursue and being thrown out and left to your own devices.

And I think you’re right: It’s really widely supported. The legislature voted the first version of this bill — the North Carolina House voted for it, 112-1 — so it’s certainly not a partisan issue. If anything, it’s something that people really come together on. And, frankly, from talking to legislators, what most of them asked me was, “They can’t already do this? I didn’t realize that.” And so I think it was a no-brainer once it was actually presented to them that way.

Kokai: Now, FIRE works on a number of issues, often dealing with students running into roadblocks at the university when they try to speak out or share their opinions in various ways. Has the university been using — universities — have they been using this quasi-legal process to help shut students down? And, if so, will having an attorney help prevent that in the future?

Shibley: Absolutely. Their own procedures are what are usually used to shut students down, particularly with regard to harassment or free-speech-zone policies, where they will tell students, “Well, you’re allowed to speak freely, but you have to do it within a certain geographic region of campus.” It’s usually much smaller than one would expect.

Or they’ll define what a student said as harassment simply because it offends somebody or because someone was upset by what’s said. Having an attorney in that process who, in that case, would have the ability to say, “No. 1, I want to make sure that all of our rules are followed. And No. 2, what about the Constitution?” could be a huge boon because I think that, in many cases, the students or the student, faculty, and administration hearing panels who are hearing these, don’t ever hear the constitutional argument.

All they … read is their own school’s procedures, and they say, “Oh, well, it says you can’t offend anybody.” They don’t hear, and the student doesn’t know because he’s 18 or 19, that this has already been adjudicated, and the First Amendment does apply to North Carolina’s public colleges and universities — in fact, public colleges and universities all across the country. It’s not just a North Carolina problem, but I’m glad to see the solution starting here.

Kokai: Do you suspect a law like this will help put a damper on some of the policies that universities and colleges use that are sort of off the reservation in terms of what they should be doing regarding student behavior?

Shibley: I think it definitely will. You know, many of these policies, we say at FIRE, don’t pass the laugh test when you read them out loud. They might look OK on the university’s website or written in their student code of conduct. But when you actually read out what they’re saying — we’ve run into policies that ban discrimination based on hair color, that ban inappropriately directed laughter.

It’s one thing to direct that at a cowed 18-year-old and say, “Hey, you inappropriately directed your laughter at this person.” It’s another to straight-facedly tell an attorney, “He inappropriately directed his laughter,” and see what reaction you’re going to get. I think that it will definitely bring some much-needed sunlight and reason to the process.