In The Matter of Roberts
150 N.C. App. 86, 563 S.E.2d 37 (2002)
Background
Petitioner was sophomore in Buncombe County School System. In October 1995, following investigation by Assistant Principal, petitioner was charged with sexual harassment_ Petitioner was suspended for 5 days, with a recommendation that he suspended for rest of school semester. Hearing was held, at which petitioner was denied legal representation. Following the hearing, petitioner was suspended for duration of 1996 fall semester. Superintendent of Buncombe County School System approved recommendation. Petitioner appealed to Buncombe County Board of Education, which upheld suspension.
Petitioner filed petition for judicial review with Buncombe County Superior Court per N.C.G.S. §§ 115C-391(e), 150B-43, and 150B-45. Superior Court reversed Board’s decision to uphold suspension. Board appealed to Court of Appeals.
Relevancy for School Disciplinary Hearings
Answering question of whether the Board’s denial of Petitioner’s right to legal representation at hearing violated Petitioner’s state and federal constitutional rights.
Held
Yes, petitioner’s constitutional rights were violated by Board’s denial of his request for legal representation.
“The North Carolina Constitution provides that ‘the people have a right to the privilege of education . . . .” (Article 1, § 15). The United States Supreme Court has stated that a student facing suspension has a property interest that qualifies for protection under the Due Process Clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 576 (1975) (citations omitted).” 150 N.C. App. at 91-92, 563 S.E.2d at 41_
“The protections of due process require that petitioner be apprised of the evidence received and given an opportunity to explain or rebut it. See Givens v. Poe, 346 F.Supp. 202, 209 (W.D.N.C. 1972) (where exclusion or suspension for any considerable period of time is a possible consequence of proceedings, modern courts have held that due process requires notice; a full hearing; the right to examine the evidence, the witnesses, and the right to present evidence; and the right to be represented by counsel.)
Under the facts of this case, where respondent sought to impose a long-term suspension and the Board Policy specifically provided for a factual hearing before the Hearing Board, we construe the Due Process Clause of the United States Constitution, applicable to the States through the Fourteenth Amendment, to require that petitioner have the opportunity to have counsel present, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Id.” 150 N.C. App. at 93, 563 S.E.2d at 42.