Monday, August 26, 2019

In a recent ruling, New York’s highest court recognized the right to counsel when a student is accused of serious misconduct. Matter of Bursch v. Purchase Coll. of the State Univ. of N.Y. In this instance, a college student was accused of multiple violations of the College’s code of conduct, including sexual assault. At the hearing addressing the complaints, the accused was given the right to representation by an “advisor” of his choice, which could be an attorney or parent. After unsuccessful attempts to contact the College to seek a brief adjournment, counsel for the alleged harasser requested a three-hour delay of the hearing due to a scheduling conflict. The College denied the request and proceeded with the hearing. Following the hearing, the disciplinary charges were upheld, and expulsion resulted.

To challenge the result, the expelled student sought judicial review. While unsuccessful at the first and second stages of appeal, New York’s highest court, the Court of Appeals, found the College abused its discretion as a matter of law and reversed and directed that the College hold a new disciplinary hearing at which representation by counsel is available. Simply stated, when such serious allegations are being adjudicated and grave penalties can result, there is a right to counsel at the hearing.

This case, coupled with the Department of Education’s proposed Title IX regulations and recent Circuit Courts’ split on student’s due process rights to cross-examination in Title IX matters, highlight the increasing scrutiny of the rights afforded those accused of sexual misconduct on college campuses.