University Honor Codes and Star Chambers

I’ve never fully understood what universities are seeking to accomplish with their various honor codes. Yes, it is important to teach students the values of citizenship in a community of scholars. But aren’t transparency and a sense of fair play also important?

Every so often, I am asked to represent a student facing discipline for misconduct of some sort at a private college or university. Invariably, the student and his or her parents present me with the university’s "honor code," a copy of the letter informing the student of the potential for expulsion, and an explanation of the student’s side of the story. And in every case, the university refuses to permit the student to have legal representation at the hearing at which the student’s fate is to be decided.

I can hear the cynics among you: Honor? Lawyers? Aren’t the two a contradiction in terms? Lawyers, after all, are rarely trusted by the world at large. We’re perceived as gunslingers willing to bend any truth for the sake of a fee.

How quickly perceptions of lawyers change when trouble comes knocking at your door and you suddenly find yourself laying awake through the night, convulsed with fear, and unable to marshal your thoughts into anything but a mad torrent of denials, pleas and explanations. Like it or not, lawyers are necessary; we are social pathologists.

Universities know this. That’s why they have general counsel on staff, and that’s why they keep litigators, those practiced in the dark arts of courtroom warfare, on staff. Lawyers draft the honor codes. Lawyers advise administrators on how to proceed with complaints filed against students. In some instances, lawyers also attend the hearings at which a student’s destiny is determined.

Query: If a university is permitted to rely on the advice and counsel of a lawyer in proceeding with student discipline, then why isn’t the student also permitted to rely on counsel? There is something more than a little smarmy about the specter of a university calling a nineteen or twenty year old kid before a secret panel to plead for his or her academic life and liberty. Do we really expect kids still shuddering from the terrors of adolescence to make good advocates on their own behalf?

A client of mine will soon face a panel of educators at a private school here in New England. The charges are serious, we are told, and could result in expulsion. Yet the evidence against my client is far from compelling. There are mitigating factors that place the conflict in a light sympathetic to the student. Yet this young person is so rattled by the prospect of expulsion, I worry that only half-truths will emerge at the hearing.

So I called the university’s lawyer. I represent the student, I explained. I have studied the allegations, and I believe there is a complete defense to them. Yes, I understand why the university made an inquiry, but the truth is far less sinister than it appears. The student’s family has retained me to protect their child.

Counsel for the university was gracious, but firm. The honor code does not permit a student to attend hearings with counsel. I asked for an exception to the rule. Request thus far denied.

By the way, I tell the lawyer for the university, my client’s family would like the hearing to be open to the public. These are serious charges, after all, that could have an impact on the student for a lifetime. We’d like to test the allegations under the light of day. Request thus far denied.

Well, can I at least attend the hearing and sit in the hallway, outside the hearing room, so that if my client has a question, I am at least nearby? We offer this much, at least, even to folks summoned before a federal grand jury. Request thus far denied: This would frustrate the spirit of the prohibition on legal counsel attending the hearings.

I will spend long hours with the young person in question, teaching them how to ask pointed question of witnesses, counseling on how to respond to the question asked without rambling in response, focusing attention on what issues matter, and which issues do not, given the offense charged. Somehow I doubt the university’s lawyer will be barred from attending the hearing to be near at hand to offer his advice and counsel.

Ironically, before I was retained to try to protect this student, the family sent in a request to have a lawyer attend the hearing with the student. The school’s dean, a man untrained in the law, told them their child did not have a Sixth Amendment right to counsel in proceedings of this sort. The dean is right, of course, but I am sure it took a lawyer to tell him about the Sixth Amendment.

Students can be prepared to represent themselves at hearings of this sort. I’ve left silent footprints on the campuses of New England colleges after having tried to give bright young men and women a crash course in the law. The students generally make out all right.

But I wonder what message colleges send when they put a kid’s future on the line and then sit together with their lawyers while denying the student legal representation at what for many of them will be the most important trial of their lives. University honor codes depriving kids of the right to counsel look dishonorable to me. Are the universities truly concerned that their policies and procedures cannot withstand the pressures of a truly adversarial process?  University honor codes? Sounds like an oxymoron to me.


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