## Facts

- Steven A. Gabrilowitz, a University of Rhode Island senior, faced state criminal prosecution for assault with intent to commit rape based on alleged conduct involving another student.
- The university initiated a disciplinary case under its Community Standards of Behavior based on the same alleged incident and scheduled a hearing before the University Board on Student Conduct.
- The university’s hearing rules barred legal counsel from being present; the student could bring only a non-lawyer advisor from the university community.
- The university suspended Gabrilowitz and barred him from campus after the criminal charge was filed and then formally notified him of the disciplinary charges and hearing procedures.
- Gabrilowitz sued under 42 U.S.C. § 1983 and sought a preliminary injunction requiring the university to permit attorney assistance at the hearing.
- The district court granted a preliminary injunction; university officials appealed.
- On appeal, Gabrilowitz clarified he sought only an attorney’s presence for consultation and advice during the hearing, not attorney-led examination of witnesses.

## Issues

1. Whether procedural due process requires a public university to permit a student to have an attorney present for consultation and advice at a disciplinary hearing when the same alleged conduct is the subject of pending criminal charges.
2. Whether barring counsel in that setting unconstitutionally burdens the student’s privilege against self-incrimination by forcing a choice between defending in the university forum and protecting the criminal defense.

## Decision

- The First Circuit affirmed the preliminary injunction as construed to require only that the university allow counsel to be present for consultation and advice.
- The court held that, given the parallel criminal prosecution and the risk that statements at the disciplinary hearing could be used in the criminal case, due process required this limited access to counsel.
- The court did not require the university to allow counsel to conduct direct or cross-examination or otherwise transform the proceeding into an adversarial trial.

## Legal Principles

- Due process requirements in school discipline depend on context, including the severity of potential sanctions and the risk of erroneous deprivation under existing procedures.
- When a disciplinary proceeding runs parallel to criminal charges based on the same facts, the risk that a student will inadvertently self-incriminate (or mishandle invocation of the privilege) can materially increase the need for procedural protections.
- The government may not impose substantial penalties that effectively compel testimony where the person has not been immunized; forcing a person to choose between self-incrimination and serious noncriminal sanctions raises constitutional concerns.
- There is no general constitutional right to active attorney representation in university disciplinary hearings, but due process may require permitting counsel’s limited presence for advice when criminal exposure is directly implicated.

## Conclusion

The court upheld an injunction requiring the university to allow a student’s attorney to attend a disciplinary hearing for consultation where the hearing concerned the same conduct as pending criminal charges, because the combined risk of severe school sanctions and self-incrimination made that limited legal assistance constitutionally necessary.


Gabrilowitz v. Newman, 582 F.2d 100 (1st Cir. 1978)