Gideon's Trumpet and the New Millennium: In Defense of Right to Counsel in Student Disciplinary Proceedings in Institutions of Higher Education

Abstract

The procedural and substantive complexities of disciplinary systems maintained by institutions of higher education for the purpose of student governance have steadily increased over the recent decades. Notwithstanding that fact, many such institutions have refused to allow students to be represented by counsel in their disciplinary proceedings, or have at best granted only limited counsel privileges to their students. Courts, meanwhile, held that students have both a liberty and a property interest in their education, each being constitutionally protected. Through a combination of institutional inertia, prevailing paternalist attitudes toward students, and concerns about costs of change, institutions have been reluctant to allow students to access the services of counsel in institutional disciplinary proceedings. But the current approach fails to recognize numerous social benefits, inuring to students, the society at large, and, paradoxically, the institutions themselves, that can be realized by the adoption of the right to counsel for students. Among such social benefits are the reduction in the internal and external costs of error of the institution's disciplinary process, the decrease in the cost of administering the system realized by the streamlining of the disciplinary process, decreased enforcement costs, and increased compliance with disciplinary rules. At the same time, many of the arguments advanced against the adoption of the right to counsel are erroneous. Contrary to the points advanced by the critics of the right to counsel for students, informal disciplinary systems without access to counsel do not promote general deterrence through higher accessibility or specific deterrence through increased educational value of the disciplinary process to the student. At the same time, informal systems do not save institutions an appreciable amount of money by foregoing the trappings of a quasi-judicial process. Nor are sufficiently detailed disciplinary codes frequently simple enough for the student to successfully represent himself or herself. This paper argues that the universal adoption of the students' right to counsel in the disciplinary process is in the best interest both of the students and of the institutions, and generally maximizes social utility over systems without students' access to counsel.