Disarm and Destroy: School Policies Prohibiting Attorney Representation in Administrative Proceedings - and How to Fight Back!
It is common for public and private schools, colleges, universities, and vocational programs (collectively referred to here as “schools”) to deprive their students and even faculty and staff of the right to attorney representation during administrative investigations and hearings. Sometimes these matters proceed to court litigation, but rarely do they proceed to appeals – thus resulting in few published precedents on the issue of right to counsel in educational administrative proceedings. Although there have been a few noteworthy cases deciding the issue of the right to counsel in such settings, there is little recent and on-point case law or statutory law published to provide necessary guidance to school administration and their lawyers regarding their legal obligations to provide students with the right to counsel.
The setting is ripe for legal challenges against schools’ policies depriving students and others of the right to attorney representation in administrative proceedings. Such challenges can be based on Due Process rights under the 5th, 6th, and 14th Amendments to the US Constitution and their state constitutional correlates; laws invalidating unconscionable terms in “contracts of adhesion”; and other arguments based in Contract Law, Administrative Law, and the Education Code. Regardless of the legal avenue one takes to challenge school policies prohibiting the right to counsel by individuals involved in administrative proceedings, to be sure such policies must be aggressively challenged!
Schools are themselves advised by legal counsel, if not teams of lawyers, and are administered by professionals with substantial experience and credentials. The investigative and judicial bodies of schools are similarly staffed and supervised by such persons. During the investigative process, schools often provide a couple days or at most a week or two of time for students to prepare for investigative meetings, to reply to serious allegations, to submit any written grievances or appeals, or to prepare for hearings before a judicial body. In such instances we most often see school administrative professionals facing off against a minor child and his/ her parent in pre-college matters or against a lone young adult in college or graduate school settings. Apart from financial, legal, educational, and experiential differences between these opposing sides, there may also be linguistic and even cognitive challenges faced by international or special needs students. Imagine this scenario!
It is simply preposterous, not to mention illegal for various arguable reasons as briefly summarized above, to expect a student or other person to properly defend themselves without the aid of a privately hired attorney against school administrators under such deeply imbalanced circumstances and short deadlines. Such disputes typically involve grades, tuition funds, housing, employment, academic discipline, discrimination, campus injuries, or criminal allegations. Thus, important matters are at stake.
It seems, however, that these are exactly the kinds of circumstances that school administrators prefer in such disputes: having on their side their own host of educational administrative professionals and legal counsel, all taking as much time as they like to mull over the facts and the law prior to bringing allegations against students, faculty, or staff ... all while the targeted individual is ambushed, metaphorically “naked and afraid”, and told to reply immediately and without the benefit of legal representation.
Not on my watch! I push back hard against such efforts, as should be the case. We all know the importance of a strong academic and professional record, whether you’re a student or a teacher facing a dispute with a school. Too often people sheepishly accept these viciously imbalanced parameters and their disastrous repercussions, and worse still too many attorneys fail to provide the necessary aggressive legal representation their clients require in such circumstances.
Whether it’s a stain on your academic record or on your employment record, administrative proceedings involve serious and potentially life-altering matters. Having strong attorney representation in Education Law disputes is crucial, and it’s particularly key to bring an attorney into the situation as early as possible so that you can hopefully comply with the various short deadlines involved in school-related disputes. Don’t wait until allegations are made or a dispute comes to a head, but rather consult with an attorney when you see a controversy first brewing. This way, an Education Law attorney such as myself might be able to help you avoid a dispute in the first place, or otherwise be all the more prepared for the fight, even taking an offensive position rather than a reactive and defensive one if necessary.
“The dissertation was just cleared by the library and Registrar today […] This was the last school-based requirement for my degree. Now time to celebrate! Once again, thank you very much for everything. None of this would have been possible without your help! Thank you so much for your words or encouragement. It really means a lot to me.”
- Education Law Client, May 2018
While it’s truly shameful for schools to act this way - as we expect high-minded ideals to be practiced in Academia more than any other place - we must not forget that schools, be they public or private, are businesses with their own agendas particularly in times of disputes with students, teachers, or staff. Personal egos, intra-office politics, financial implications, reputations, and careers are all in jeopardy for schools in times of controversy with their constituents. It’s crucial to know this from the outset so that you’re wary of the signs of a controversy and better prepared to deal with conflicts before they occur.
Therefore, even though a school policy explicitly states that attorney representation is prohibited in administrative proceedings, a person would be wise to immediately consult with a well-credentialed, aggressive, and intelligent Education Law attorney as early as possible. Various legal arguments and actions should be expediently prepared and employed to properly fight back against an institution’s preposterous efforts to disarm and destroy its opponents, and in a school dispute, such an opponent could be a 19 year-old Psychology major, a 5th grader and her non-English speaking mom, or an idealistic grad student or teacher. What chance do they really stand opposing on their own, without legal counsel, the academic institution and all its professional and legal resources?
An attorney can do much for a student or other individual facing a school in an administrative grievance, investigation, hearing, or appeal, be it reviewing the facts and properly advising the individual, drafting correspondence or other documents in the dispute, negotiating with the school, representing the individual at hearings, filing complaints with governmental bodies, or preparing the foundations for litigation against the school in the court system.
Schools know this, and that’s why they scurrilously try to prohibit attorney representation for individuals - be they students, teachers, or staff - in such disputes. It’s far easier for schools to remain unopposed, to intimidate you, and to take your money and time and leave you holding your head on the curb after it’s all over.