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Published in Print: January 15, 2003, as N.C. Court to Mull Right to a Lawyer In Discipline Cases

N.C. Court to Mull Right to a Lawyer In Discipline Cases

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The allegation against the 15-year-old boy was sexual harassment, the proposed punishment a suspension that would consume more than half a school semester.

Those are high stakes for a high school sophomore. Yet the accused, Nicholas R. Roberts, had only his mother at his side on Oct. 14, 1996, when he faced a panel of six teachers gathered to decide his fate in a courtroom-style hearing in Buncombe County, N.C. The boy's lawyer sat in the hallway that day, barred by district policy from a proceeding that ended in his client's suspension.

Did the district violate the student's civil rights when it shut out his lawyer, as Mr. Roberts contends in a lawsuit that reaches the North Carolina Supreme Court next month?

The answer to that question remains open for now, but the case has reinvigorated a debate between those who want greater legal protections for students and those who fear that involving lawyers will drive up the cost and complexity of school discipline.

A decision in Mr. Roberts' favor would mark the first ruling by a state's highest court that the 14th Amendment to the U.S. Constitution affords students the option of being represented by a lawyer at discipline hearings. That possibility makes the case one of national importance, regardless of whether it reaches the U.S. Supreme Court, legal experts say.

"No state has found there is a state or federal right to full due process for students in disciplinary hearings," said Jamin B. Raskin, a law professor at American University in Washington and the author of We the Students: Supreme Court Cases For and About Students.

In legal parlance, "due process" refers to the federal constitutional protection against the government's taking of "life, liberty, or property" without adequate procedural safeguards— essentially, a fair hearing. Some scholars argue that the "property" at stake for students facing long suspensions is their right to a public education under the laws of most states.

"The Supreme Court might want to wait for the federal circuit courts, or other state courts, to percolate on this issue," Mr. Raskin said, "but it's a critical question, and there will be no dodging the bullet over the long term."

'Revolutionary' Idea

The nation's top court did rule on the issue of due process for public school students during a period of widespread unrest for American high schools in the 1970s, when many black and other minority students argued that school discipline policies were discriminatory.

In most of the incidents brought to light in the 1975 case Goss v. Lopez, school administrators had simply suspended students without ever filing formal charges, giving them an opportunity to be heard, or having the cases reviewed by a neutral third party.

The Supreme Court struck down the disciplinary actions, which mostly involved 10-day suspensions, and ruled that schools must offer a fair hearing before suspending a student. But the decision did not give students the right to be represented by lawyers in hearings for suspensions, or to cross-examine witnesses and produce evidence.

Still, "the idea of some due process—any due process—for high school students was revolutionary" at the time, Mr. Raskin said.

The high court also declined in the same case to rule on whether students who face expulsion or suspensions of longer than 10 days should be allowed legal representation in disciplinary hearings. So, lawyers on both sides of the North Carolina case—which is scheduled for oral arguments before the state supreme court on Feb. 5—have looked beyond Goss v. Lopez for other rulings.

Civil liberties groups writing in support of Mr. Roberts, who is now married and taking college courses, point to a 1972 federal district court ruling in North Carolina that held that children were entitled to a fair hearing prior to long-term exclusion from public school. The federal court used existing case law to determine that legal representation for students in such hearings was a key component of due process.

A federal court in Missouri, on the other hand, decided in 1986 that a suspension hearing for a student charged with sexual harassment had met the minimum requirements for due process, even though the accused student had not been allowed to have a lawyer actively participate on his behalf during the hearing.

A more recent decision, handed down in 2001 by an Indiana appeals court, rejected the contention that a middle school student facing suspension for the remainder of a school year had a right to legal representation at the administrative hearing that preceded his punishment.

The Indiana court concluded that allowing students to bring lawyers to discipline hearings would force schools to do the same, and that "the fiscal burden on the school administration outweighs the benefit of allowing counsel at the expulsion hearings."

Zero-Tolerance Climate

Students' rights groups and some lawyers dismiss that financial argument as a red herring used by school districts to shield potentially unfair discipline practices from scrutiny. Of particular concern for those advocates is today's climate of "zero tolerance."

Since 1994, when Congress passed the Gun-Free Schools Act, which called for a one-year suspension for any student caught with a firearm at school, such no-nonsense punishments have become commonplace throughout the country and are meted out for a wide range of student offenses.

Critics of zero tolerance argue that school officials often abuse the policies to rid themselves of troublesome students. ("Interpretations of 'Zero Tolerance' Vary ," April 10, 2002.)

While administrators never used the term "zero tolerance" in Mr. Roberts' suspension case, his lawyer argues that the Buncombe County district's discipline panel simply rubber-stamped the principal's recommended punishment, despite conflicting eyewitness accounts and the fact that the infraction the student was accused of—making a sexually suggestive statement to a female classmate—did not meet the legal definition of sexual harassment.

"The whole process was overseen by what was supposed to be an independent panel," said lawyer Paul L. Bidwell of Asheville, N.C. "There was nothing independent about it."

After Mr. Roberts was suspended, Mr. Bidwell said the teenager spent a year in a military academy at his parents' expense and returned the following year to a different high school in the Buncombe County district.

Alex Koroknay-Palicz, the president of the National Youth Rights Association in Washington said Mr. Roberts' experience was "not unusual in the least, especially now, when schools are using suspension and expulsion more than ever before."

"There is often very little recourse for these students who are expelled," Mr. Koroknay-Palicz said. "Their experience doesn't at all live up to the due process that an adult would expect in a criminal proceeding, despite the fact that a student's entire future hangs in the balance when they are suspended for a long time."

Some legal experts, however, argue that students who are accused under school disciplinary policies simply don't need the same safeguards as a person facing criminal prosecution. Administrators are not, after all, prosecutors, and suspension hearings aren't criminal prosecutions, they say.

"In a hearing like this, can a student be fully heard and have all his rights protected without a lawyer? I think the answer is yes," said Edwin C. Darden, a senior staff lawyer with the National School Boards Association, in Alexandria, Va. "School districts are by and large fair places."

Uncommon Practice

To head off unfairness, perceived or otherwise, many states and districts have chosen without court intervention to allow lawyers into student discipline hearings.

An analysis by the Children's Education Law Clinic at Duke University in Durham, N.C., found that the Buncombe County schools' policy of denying students legal representation in suspension proceedings—even initial fact-finding hearings— was uncommon.

In North Carolina alone, 112 districts allow students' lawyers into initial hearings in discipline cases, according to the analysis. Only three, including the 24,600-student Buncombe County district in the western part of the state, don't. The law clinic was unable to get information on the policies in the state's remaining 22 districts.

"My research showed that most states allow [legal representation] by statute," said Jane R. Wettach, the director of the law clinic, which offers free representation for children. "What I couldn't find is where it isn't allowed. It appears to be routine practice across the country, and it's definitely routine practice in North Carolina."

In other states without laws that require schools to allow students legal representation in suspension hearings, Ms. Wettach found that districts often do so anyway. School districts in Anchorage, Alaska; Ann Arbor, Mich.; Atlanta; Providence, R.I.; and Nashville, Tenn., are examples.

The Buncombe County school board argued that its policy, which has remained unchanged since 1996, also offers students significant due process.

While Nicholas Roberts was not allowed to have legal representation in the initial suspension hearings, he was allowed to bring his lawyer to an appeals hearing before the board of education and to present new evidence or call witnesses, according to the board's lawyer.

"We argue that, overall, the set of procedures used by the Buncombe County district constitutes due process," said Allan P. Root, the district's lawyer.

But Mr. Bidwell, the opposing counsel, said he couldn't disagree more, and pointed to the fact that two North Carolina courts have already sided with his client.

"The board claims that this child was granted his rights under their policies and procedures, but ... that's an absolute lie," Mr. Bidwell asserted. "The board of education shouldn't be able to put a label on a kid that has no basis in fact and ruin that child's reputation.

"What he did was extremely juvenile, but so was he. He was just a kid."

Vol. 22, Issue 18, Pages 1,12

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