Representation by advocates in jeopardy

    The A.S. Council adopted a resolution opposing a proposed change to UCSD’s Student Conduct Code that would prevent students from being represented by an advocate at judicial hearings. The council passed the resolution by consensus at its Oct. 8 meeting.

    The key change in the code has deals with the difference between participation of advocates and representation by advocates. Under the proposed rules, advocates would be able to indirectly participate in all proceedings by serving as a resource to the students, but such advocates would not be allowed to directly represent or speak on the behalf of the students.

    Currently the code allowed for nonattorney representation. But a review of the code by the UC Office of the General Council concluded that the code could not differentiate between attorneys’ and nonattorneys’ ability to represent students at hearings.

    Nicholas Aguilar, director of Student Policies and Judicial Affairs, proposed to eliminate representation altogether in an effort to comply with the request from the General Council.

    “”I made the decision … because the restriction on attorneys representing students had already been in place for at least two years or three years before the current revision,”” Aguilar said. “”I am very confident that this action was in no way arbitrary or capricious and in fact does not in any significant way deprive the student of effective assistance of counsel, attorney or nonattorney.””

    A.S. Commissioner of Student Advocacy Jeffrey Boyd sees the attempt to end representation as an attack on student rights.

    “”This is just one more option for the students to have and this is one more option I think that the university is trying to crack down on,”” Boyd said. “”They’re limiting the options that you have available as a student when you go into a formal hearing.””

    Under the current code, students can be assisted by attorney and nonattorney advocates, but only nonattorneys may directly represent students and speak on their behalf at hearings.

    Among many points, the resolution adopted by the A.S. Council takes issue with the fact that the Student Regulations Revisions Committee, which convened in fall 2002 to comment on the conduct code overhaul and includes 10 student members, had no input on the proposed change.

    According to Aguilar, recommendations made by the Office of the General Council, which ensure compliance with the law and university policy, are usually implemented without input from students or faculty.

    “”The vice chancellor [of student affairs] actually took the extraordinary step of informing the A.S. and Graduate Student Association of these changes because he wanted to give the student government the opportunity to provide him additional comment,”” Aguilar said. “”But this is an extraordinary step that is not required in the process of revising student regulations.””

    Thurgood Marshall College Chair Travis Silva, co-author of the A.S. Council resolution, hopes that the student voice will be heard.

    “”We’re looking forward to working with Vice Chancellor [of Student Affairs Joseph W.] Watson to make sure that student input is incorporated into this decision,”” Silva said.

    The A.S. resolution cites the U.S. Constitution’s guarantee that “”the accused shall enjoy the right … to have the assistance of counsel for his defense”” as reason to allow student representation.

    However, Aguilar said that this did not apply.

    “”[The resolution] fails to point out that the Constitutional right to counsel is limited to individuals subject to criminal prosecution and does not apply to lawsuits brought in civil courts or before administrative law procedures, such as UCSD’s procedures for processing complaints of alleged violation of the university’s student conduct regulations,”” Aguilar said.

    Aguilar objects to other clauses of the resolution as well.

    “”The resolution is misleading in that it implies that the revisions eliminated the ability of students to have an advocate assist them,”” Aguilar said. “”The advocates can actually accompany the student to all the meetings, and participate throughout, from the informal hearing up through the formal hearing and even through the appeal.””

    Boyd worries that simple participation of an advocate will not be sufficient to ensure an adequate defense of the accused.

    “”I think a student who’s shy and quiet is not going to be at the same level as someone who’s very outspoken or a student who would be ideal for representing himself, who understood the Student Conduct Code very well,”” Boyd said.

    Silva agreed.

    “”Not every student at this school is able to present themselves as eloquently and zealously as possible in the context of university disciplinary action,”” Silva stated. “”The goal here is to allow students to have an advocate, not necessarily a lawyer, but just someone who they can ask to defend them in case they’re accused of something.””

    The resolution also points out that UCLA and UC Berkeley both allow representation at hearings.

    “”Some of the schools that we’re trying to be better than, i.e. UCLA and Berkeley, both allow for student advocates and student attorney representation,”” Boyd said. “”And that’s something I think that our policies are not being consistent with.””

    Conversely, the UCSD administration proposed the policy as being “”very much in the mainstream of colleges and universities, particularly within the UC system, of not having attorneys or other advocates actually represent students.””

    Aguilar believes the tone of judicial hearings will also be severely affected by the end of all representation.

    “”In terms of the formal hearing, what motivated the change was the fact that having third parties represent the accused … actually was creating a communications barrier, was causing unnecessary delays in terms of scheduling, raising the level of the hearing process … to the much more formal and legalistic environment that is seen in civil or criminal cases, which was never the intent and is not what either the law or policy require by way of the procedures and procedural due process that is to be afforded to students involved in alleged misconduct,”” Aguilar said.

    Boyd, on the other hand, believes that having an advocate represent accused students levels the playing field in the hearing and ensures that the university does not have a built-in advantage.

    “”If you don’t know the Student Conduct Code, the university can walk all over you in the formal hearing. I’ve seen it happen before,”” Boyd said. “”If you don’t have an advocate there who’s able to directly intervene on your behalf, you’re at a big loss with trying to keep the university playing by the rules. That’s just the way they operate.””

    The new Student Conduct Code must have the approval of Vice Chancellor of Student Affairs Joseph W. Watson and Acting Chancellor Marsha A. Chandler before taking effect. While Aguilar hopes approval might come in the next week, the A.S. resolution states that “”the Vice Chancellor of Student Affairs ought to indefinitely postpone implementation of the proposed changes to the Student Conduct Code in an effort to gather further student input.””

    “”The best-shot scenario I would like to see happen is just to see all representation allowed,”” Boyd said. “”I think that would be great.””

    According to Aguilar, the changes, if approved, would not be detrimental to students.

    “”The only change now is that nonattorney advocates are now being treated the same as attorneys,”” he said.

    Silva disagreed.

    “”It’s important to remember that people are unjustly accused sometimes, and they might need someone to defend them,”” he said.

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