Comment   |   Volume 160, Issue 2

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

Ellen L. Mossman

January 2012

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.

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

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