Navigating a legal dilemma: a student's right to legal counsel in disciplinary hearings for criminal misbehavior.

• Author: Mossman, Ellen L.

INTRODUCTION I. SCHOOL DISCIPLINARY PROCEDURAL DUE PROCESS A. Rise of Procedural Due Process Protections in Schools B. The Approach of Codes and Courts to the Right to Counsel in Disciplinary Hearings 1. A Brief Survey of Disciplinary Codes 2. Courts' Approach to the Right to Counsel in Disciplinary Proceedings II. THE RIGHT TO APPOINTED COUNSEL: FROM FELONIES TO CONTEMPT OF COURT A. Criminal Proceedings B. Prison Disciplinary Proceedings C. Juvenile Proceedings D. Civil Hearings E. Civil Contempt Hearings III. CONSTITUTIONAL AVENUES TO AFFORDING COUNSEL IN SCHOOL DISCIPLINARY HEARINGS A. Sixth Amendment Right to Counsel B. An Essential Element of Due Process Under Mathews v. Eldridge Balancing 1. Dispensing with the Presumption Against Counsel 2. A Class Requiting Counsel Under the Mathews Analysis 3. Requiting "Alternative Procedural Safeguards" in Lieu of Counsel IV. NONCONSTITUTIONAL AND POLICYAVENUES: WHAT A "FAIR-MINDED SCHOOL PRINCIPAL" WOULD IMPOSE A. Voluntary Implementation of the Right to Counsel in Schools B. Addressing Arguments Against Counsel CONCLUSION INTRODUCTION

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. (1) 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. (2)

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. (3)

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.

The utility of a student's right to counsel in the above situation is obvious; however, entitlement to this right is not. A student is entitled to counsel, appointed by the court if he or she is indigent, in the criminal proceeding if he or she faces potential incarceration. But school disciplinary actions are civil proceedings. Thus under current Supreme Court Sixth Amendment jurisprudence, a person has no right to appointed counsel unless he faces potential imprisonment. (4)

Fortunately, the Sixth Amendment is not the only route to securing a student's right to counsel. Students in public schools and universities are entitled to minimal procedural due process before they can be suspended or expelled from school. (5) This Comment concludes that when a student faces both a disciplinary hearing and a potential criminal incarceration, an analysis of the interests at stake indicates that Fourteenth Amendment due process protection entitles a student to the assistance of counsel in both proceedings.

The Supreme Court decided two cases in the last Term that are related to the right to counsel in school disciplinary hearings. In Turner v. Rogers, the Supreme Court addressed a situation in which a father in a custody dispute was incarcerated for civil contempt because he failed to pay his court-mandated child support. (6) The Court determined that while counsel was not strictly necessary, alternative procedural safeguards are required before an indigent parent can be incarcerated for contempt. (7) In a case coming out of the public schools, J.D.B. v. North Carolina, a seventh-grade student was pulled out of class by a uniformed police officer and questioned without a Miranda warning at school about home break-ins that had occurred in his neighborhood. (8) Juvenile criminal charges followed this interrogation, and the Court addressed whether Miranda warnings were necessary due to the age of the suspect. (9) The Court concluded that age should be a factor in determining whether a child is in custody, and thus requires the Miranda warnings before questioning. (10) Attorney Ken Schmetter, author of the American Bar Association's brief in the case, characterized the J.D.B, decision as a "very significant decision for kids." (11) The Court, the Washington Post reported, recognized that "children are more easily coerced and impulsive than adults, less likely to foresee the implications of their actions and more likely to make false confessions." (12) Despite establishing important procedural safeguards in civil cases and recognizing the vulnerability of children accused of misconduct at school, these two cases hardly guarantee any procedural protections for a student in the situation this Comment considers.

This Comment will analyze the issues of school disciplinary due process and the Sixth Amendment right to counsel, and their intersection in this factual situation--an instance where a student simultaneously faces academic and criminal penalties in parallel proceedings. Though infrequently addressed in litigation, (13) this is an important topic that concerns countless students in public schools and universities across the country. Several scholars have analyzed due process fights in school disciplinary cases and have discussed how schools and courts should address these rights. (14) The evaluation of the right to counsel in a disciplinary hearing, however, has remained one discrete issue among many in current scholarship. Thus, the scope of this Comment is limited to evaluating the particular situation of a student facing both criminal and disciplinary charges arising from the same event and looks only at the role of and right to counsel in that particular situation. In seeking to find a constitutional right to counsel for these students, I will explore the various obstacles to obtaining that right in constitutional provisions and interpretations.

Part I explains the theory behind and requirements of procedural due process in school disciplinary proceedings and how courts have previously addressed the right to counsel in these proceedings. Part II examines the right to counsel guaranteed by the Sixth and Fourteenth Amendments. The intersection of school disciplinary hearings and the right to counsel is analyzed in Part III, which asks whether the Sixth Amendment or the Fourteenth Amendment guarantees this fight. I ultimately conclude that an application of the factors from Mathews v. Eldridge (15) compels the conclusion that the Fourteenth Amendment entitles a student to counsel in this situation. Finally, in Part IV, I explore persuasive extra-constitutional reasons for affording a right to counsel, along with some of the arguments against affording the right.

The Supreme Court has recognized the importance of education and the severe consequences that can occur when it is taken away. (16) The Court has also recognized in Gideon v. Wainwright, the seminal case guaranteeing appointed counsel, that "lawyers in criminal courts are necessities, not luxuries." (17) Given the dangers of action without counsel in a disciplinary proceeding where both expulsion and criminal imprisonment are possible outcomes, lawyers in school disciplinary hearings are no more of a luxury.

1. SCHOOL DISCIPLINARY PROCEDURAL DUE PROCESS

   1. Rise of Procedural Due Process Protections in Schools

      Arising out of the civil rights movement, procedural due process protection in school settings has developed into a flexible doctrine highly dependent on the specific facts involved. The decisive appellate case that laid the groundwork for Supreme Court-mandated due process is Dixon v. Alabama State Board of Education. (18) The plaintiffs in Dixon were six black college students who in Montgomery, Alabama, in 1960 entered a lunchroom and demanded to be served. (19) After their actions attracted the attention of the Governor and the Chairman of the State Board of Education, the Board of Education voted unanimously to expel the plaintiffs. (20) The students faced no formal charges and the school did not hold a hearing prior to their expulsion. (21)

      In this landmark decision, the Fifth Circuit emphasized...