Navigating a Legal Dilemma: A Student’s Right To Legal Counsel In Disciplinary Hearings for Criminal Misbehavior

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In
recent years, school violence has repeatedly shocked the immediately
affected communities and the entire country. While the shootings
at Columbine High School and Virginia Tech represent the tragic extreme
of school violence, increasing numbers of other criminal acts—including
sexual assault, weapons possession, and drug-related activity—are
occurring on high school and college campuses.
As violence and allegations of crime rise in schools, so too do the
number of proceedings in which institutions attempt to discipline the
perpetrators.

Such
proceedings present a unique legal dilemma. A student
faces a number of consequences and challenges when accused of conduct
in violation of both criminal law and school policy. Say a student
at a publicly funded university sells illegal drugs on campus:
of course selling drugs violates criminal law. But many universities
have also enacted student codes that impose disciplinary sanctions on
students who sell drugs.

If
a student wants to remain enrolled and continue attending school, he
may participate in a school disciplinary proceeding, which may occur
well before the criminal case has concluded. At the proceeding,
a disciplinary panel will ask questions of the student and other witnesses
to determine whether the alleged conduct actually occurred.

At
this proceeding, one of two things could happen. The student could
refuse to answer the questions, because he does not know what facts
will incriminate him in his later criminal drug case. If he refuses,
however, he may face suspension or expulsion on the basis of the testimony
of the witnesses against him. Alternatively, the student, wishing
to put the events behind him, could testify, admit to selling drugs,
and receive a disciplinary sanction. Subsequently, he would stand
trial in the criminal case, where his statements from the school disciplinary
hearing can be introduced into evidence against him.

With
parallel proceedings—one criminal and one administrative—arising
from the same set of facts, the student has conflicting interests and
faces procedural obstacles in both. The dilemma is further complicated
without the assistance or advice of trained legal counsel to warn the
student of adverse legal consequences and recommend how best to proceed.
Admittedly, a school disciplinary proceeding does not threaten a student’s
liberty in the same way a criminal proceeding does. But when a
student faces this type of situation, he is forced to make decisions
and meet challenges—including confusing legal questions concerning
self-incrimination, admissibility of evidence, and confrontation of
witnesses—that he is ill-equipped to handle without the advice of
legal counsel.

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