Right to Representation

Nearly everyone knows that they have some sort of constitutional right to a lawyer—even under some circumstances to a free lawyer. The Sixth Amendment right to counsel, though, applies to federal criminal prosecutions, not to civil matters like student disciplinary proceedings. The Fourteenth Amendment extends the right to counsel to state action but still only to criminal prosecutions, not civil or disciplinary matters. Unless the student disciplinary matter has the character of a state criminal prosecution, with incarceration as a potential punishment (which would obviously never be the case), the charged student must look elsewhere for a counsel right.

Fortunately, federal and state due-process guarantees offer the accused student some protection for securing and relying on the assistance of counsel. Colleges and universities generally bar lawyer advocates from participating actively in student disciplinary hearings. They don't want a lawyer telling them that they are not following their own rules. Yet public colleges and universities, and private institutions that accept federal funding, owe students due process in sexual-misconduct and all other cases where a student's educational rights and interests are at stake. Notice of charges and a fair hearing are due process's foundational rights, but those rights can extend to the assistance of counsel. While the right may not include active participation at the disciplinary hearing, institutions generally do not interfere with other forms of assistance of counsel.

Statute, rule, and regulation may extend the right to counsel where constitutional guarantees do not. When, for instance, the U.S Department of Education's Office of Civil Rights is investigating discrimination alleged to have occurred at a college or university, the Office's rules permit anyone whom the Office interviews to have counsel present. States may have similar statutes, rules, or practices extending a right to counsel in disciplinary matters, such as North Carolina's Students  and similar laws in Arkansas and North Dakota. Colleges and universities also have their own rules and follow their own practices, which may extend the right to counsel beyond that which constitutions and statutes require. A lawyer experienced in student-discipline matters knows how to provide students with the greatest assistance within these limits.

Lawyer or School Official?

The charging institution may offer its own officials to guide a student through the institution's disciplinary process. Why, then, would a student need a lawyer? First, school officials are generally not lawyers. They do not have the education, skill, and experience to evaluate allegations, marshall evidence, and ensure the institution follows rules, especially including the institution's burden of proof. Second, school officials have a natural conflict of interest. Their role may include guiding the accused, but they still work for the school. They may have close working relationships with the officials who are charging the accused. The accused student benefits from a trained, skilled, and independent lawyer counselor.

A lawyer's greatest skill, though, can be in placing the specific case in the context of dozens or even hundreds of other cases, each with their own outcome. When a student charged with misconduct hires a lawyer with substantial experience in college and university discipline matters, the lawyer will know the range of possible outcomes. The lawyer's counsel helps the student know what outcomes are assured, likely, achievable, unlikely, or impossible. The charged student can then proceed in the student's best interest, relying on the lawyer's wisdom, accumulated through many years of experience with university officials.

The Right's Scope

Institutions often permit the student to designate a representative to attend the student's hearing. That representative may be a parent or friend but could certainly be a lawyer. Lawyers do not always actively participate in a student disciplinary proceeding as they would at a civil or criminal trial. Yet new Title IX rules grant the accused student the right to have the student's lawyer cross-examine witnesses about the case's sexual-misconduct allegations. Cross-examination is a powerful truth tool, wielded most effectively by a trained lawyer advocate.

Even in hearings outside of Title IX, where the right may not include lawyer cross-examination, a lawyer who attends and observes a disciplinary hearing may advise the student on what evidence to present, questions to ask, and arguments or objections to make. A lawyer's attendance also demonstrates how seriously the student takes the student's right to a fair hearing. A lawyer who attends and observes a hearing is also far better equipped to help the student prepare post-hearing closing arguments and appeals. And the lawyer's most-significant contribution may well have been before the hearing, helping the student prepare to present and challenge evidence, following the proceeding's rules.

Indeed, an institution's only significant restriction on the student's right to representation is how active the lawyer may be at the disciplinary hearing. Institutions must not interfere with the student's full use of the lawyer's services outside of the hearing, such as interpreting the institution's charges and other records, preparing writings responding to charges and other requests or demands, preparing for the hearing, and preparing written appeals or other challenges to hearing results.

The Right's Substance

What specifically might a lawyer do for the accused that the accused or a non-lawyer supporter might not? Students facing serious disciplinary charges may risk criminal prosecution. Prosecutors may use statements and admissions that a student makes in a disciplinary proceeding to bolster and prove criminal charges. A lawyer skilled in criminal defense will recognize when disciplinary matters implicate crimes and will help the student assert and preserve their right against self-incrimination.

Lawyers also understand proof burdens. Due-process generally guarantees that the institution meet the burden of proving the charges with evidence at least showing that the misconduct more probably than not occurred (the preponderance standard). In other cases, the institution must meet a higher clear-and-convincing-evidence standard, either because of the charge's natures or the institution's assurances in its policies and procedures. A skilled and experienced lawyer can help the student prepare written statements and appeals showing that the institution has not met its burden.

Expert legal counsel can be your greatest resource in disciplinary proceedings. Hundreds of students nationwide have retained Joseph Lento at the Lento Law Firm to represent them in disciplinary matters. Joseph D. Lento and the Lento Law Firm have the knowledge, resources, support staff, and lawyer expertise to help you through a disciplinary proceeding, for the best outcome. Call 888-535-3686 to schedule a consultation, or use the