Scrutiny of the University of Oregon's student discipline system in the wake of the recent sexual misconduct allegations against three basketball players has put in the limelight a little-known aspect of student legal representation.
The student government -- the Associated Students of the University of Oregon -- provides free representation by attorneys for students accused by the university of violating the student conduct code. The student government has a significant budget to pay these lawyers.
The UO Coalition to End Sexual Violence has criticized the free legal aid because, the way it has been set up, attorneys can only represent the accused in student conduct hearings or administrative proceedings.
Under the procedures, a student making a complaint in a sexual misconduct case must hire his or her own lawyer -- or do without a lawyer through the UO disciplinary process.
UO law professor Caroline Forell said that in cases of sexual misconduct, the UO ought to find a way to provide the alleged victim representation as well.
University spokeswoman Julie Brown responded to the question of fairness with this statement: "The UO conduct process allows a student to bring an adviser if they choose, but it is not a legal process. It is not uncommon for a student to hire an attorney and select them as an adviser. But it is also possible that an adviser can be a parent, friend, etc. Again, student conduct is not a legal process. Communication is directly with students."
Anywhere from 14 to 39 complaints of sexual misconduct are filed a year at the UO, according to recent annual Campus Security and Fire Safety Reports.
How many of those reported cases are adjudicated through the student conduct code process is unclear. The UO could not immediately provide figures for its conduct code adjudications.
The student code addresses student violations including alcohol and drug use, academic misconduct, cheating, plagiarism, forgery, computer violations, theft, trespass, disruptive behavior, destruction of property, harassment, physical assault and sexual misconduct.
The code gives a detailed definition of sexual misconduct, stating that it includes, for example, "nonconsensual personal contact ... when a student subjects another person to contact of a sexual nature when a reasonable person would know that such contact would cause emotional distress," without first obtaining "explicit consent."
The complaint proceeding is arranged by the UO Office of Student Conduct and Community Standards. A panel can be convened to hear a case or, if an accused student chooses, an administrator can hear the case.
The panel or the administrator decides whether a preponderance of evidence shows the accused student is culpable. The standard for expelling the student from the university is "clear and convincing" evidence.
"If it's a serious enough offense," Forell said, "you can be expelled, you can be suspended, you can have a notation on your file or you can have something much lesser than that."
The student government's Office of Student Advocacy provides an attorney to represent the student through the process. In cases of plagiarism or underage drinking, for example, the free legal aid ensures that the student isn't alone against the university.
But sexual misconduct cases are more complicated because two students are involved. The Office of Student Advocacy is prohibited from representing one student against another -- so it represents the accused student through the disciplinary process.
"The limit on the accusers is we can't help them file a complaint or grievance, and so that would require that we send them to the right place where people can help them do those particular activities," Office of Student Advocacy lawyer Hilary Berkman said.
Berkman and two additional contract lawyers, Leslie Wolf and Jeff Koenig, represent students on numerous matters. Two third-year UO law students are assigned to help.
Mandatory student incidental fees provide the office's annual budget of $244,600. The source of funds means that a complainant in a sexual misconduct case, in effect, helps pay for the accused student's attorney.
In previous cases, the student who brings the complaint typically has gotten help and advice from the UO director of student conduct and community standards, Berkman said.
A new director, Sandy Weintraub, recently took the post. Berkman said she's not sure whether he will provide the same service to complainants. Weintraub did not return a call seeking comment.
But some say there's no substitute for an attorney in a quasi-judicial process to tend to the rules of evidence and other procedures meant to keep the process fair.
"I don't think that's fair if the complainant is not receiving an actual attorney in that hearing," said Dana Woolbright, attorney with the Survivors Justice Center at Lane County Legal Aid.
Woolbright said she could be available to represent a UO sexual assault complainant -- but she has never been asked.
To get the help from Lane County Legal Aid, however, the student would have to qualify under income guidelines that gear the program to low-income clients. The Survivors Justice Center is a collaboration of Lane County Legal Aid and Advocacy Center, Womenspace and Sexual Assault Support Services.
The lack of a free attorney for some complainants through the student conduct process doesn't tarnish the process, Berkman said.
"What's important is to have a fair, impartial hearing that the campus can feel assured that (the process) got to the right result," she said.
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