by Greg Care
My colleague, Andy Levy, mentioned to me that a recent episode of the CBS legal drama, “The Good Wife,” depicted a disciplinary hearing at a university and featured an issue that has been vexing me in my representation of students and resident physicians – the lack of due process. While TV shows, even (and sometimes especially) lawyer ones, tend to get some legal concepts wrong, this episode did a pretty good job of highlighting a distressing trend in disciplinary hearings in academic settings.
The scene portrayed attorney Alicia Florrick (played by Julianna Margulies) representing a young woman at a university disciplinary hearing who alleges she was raped by a fellow student. At the hearing, Alicia attempts to point out a violation of the woman’s rights but is told that according to the school’s policy, attorneys aren’t allowed to speak. During a break, Alicia coaches the student on how to defend herself and, when the hearing resumes, begins texting advice to her (until the student’s phone battery runs out!) and a witness (who mistakenly reads a comical auto-correction by the iPhone). These exchanges make for interesting TV, but they effectively demonstrate the absurdity of not allowing attorneys to participate meaningfully in these non-judicial, but critically important, proceedings.
It is common for academic institutions, including medical schools and teaching hospitals, to deprive their students of due process even though students at public schools are entitled to due process under the U.S. Constitution, and students at private schools usually have similar rights by contract. For example, it is common for schools to have a policy similar to the one depicted on “The Good Wife,” denying the student’s lawyer the right to speak. In some instances, the lawyer is even barred from the hearing room altogether.
Policies limiting how attorneys can help their clients are violative of due process rights for many of the same reasons that they contravene common sense. Students, medical interns, and resident physicians are not trained advocates; they are familiar with the facts of the situation, but they lack the critical understanding of how to present those facts clearly and persuasively, question opposing witnesses, and argue legal issues. And the reality is that, in most cases, there is an imbalance in relevant experience among the non-lawyer participants. School representatives, such as deans and program directors who speak at hearings on behalf of the school usually have done so before. By contrast, the student is usually a complete novice in such matters. This imbalance is grossly unfair and undermines the academic integrity of the process. Moreover, forcing students to defend themselves without assistance calls to mind something the U.S. Supreme Court said in an analogous situation: “The adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.” Kay v. Ehrler, 499 U.S. 432, 437-38 (1991). It is an exceptional self-advocate who is able to objectively assess their situation and resist the emotional pitfalls when presenting testimony and cross-examining the institution’s representatives, particularly where those representatives are the student’s own teachers and mentors.
So what is a student to do in the face of such potential unfairness? Despite these obstacles, a lawyer can be enormously helpful during the academic disciplinary process, and students facing disciplinary action should retain experienced attorneys as early as possible to help them prepare. My colleagues at Brown, Goldstein & Levy and I have helped many college students, nursing students, and resident physicians prepare their presentations, including such things as how to address the school’s arguments and the panel’s questions, what to expect along the way, and what to do in the event of an adverse decision.