1

LEGAL BOUNDARIES AND DUE PROCESSFall Semester 2008

Nona L. WoodAssociate Director of Student Rights and ResponsibilitiesNorth Dakota State University, Fargo, NDNona.Wood@ndsu.nodak.edu

2

Purposes of Due Process in Student Hearings1) Reduce risk of wrongful accusation

2) Conduct an objective investigation

3) Provide administrator accountability

4) Balance countervailing interests (Baker, 1992)

3

TRUE OR FALSE?1. In general, the more severe

the potential penalty, the more process is due.

4

The Mathews Balancing Test

1) “[R]equires consideration of the cost of the additional procedure sought,

2) [T]he risk of error if it is withheld, and

3) [T]he consequences of error to the person seeking the procedure.” [Osteen v. Henley, 13 F.3d 221, 226 (7th Cir, 1993) citing Mathews v. Eldridge, 424 U.S. 319 (1976).]

5

“The Courts have been very reluctant to interfere with college proceedings concerning internal discipline. A college is a unique institution which, to the degree possible, must be self-governing and the courts should not become involved in that process unless the process has been found to be biased, prejudicial or lacking in due process.” [Schulman v. Franklin & Marshall College, 538 A.2d 49, 52 (Pa.Super.Ct. 1988)]

6

The Rightsof the

Individual

The legitimateinterests ofthe StateVersus

Balancing

Due Process:

7

TRUE OR FALSE?2. Hearing a case on campus

that will also be heard in court represents double jeopardy.

8

Double Jeopardy—Why Not???

Double jeopardy is a criminal concept. Our process is educational, not criminal in nature.

We use a lower standard of proof. Formal rules of evidence do not

apply.

9

CASE LAW CITATIONS

State v. Sterling, 685 A.2d 432, (Me. 1996)

State v. Kauble, (948 P.2d 321 (Okla.Crim.App. 1997)

Oshkosh v. Winkler, 206 Wis.2d 538 (Wis. App. 1996).

10

FORMAL RULES OF EVIDENCE

Do not apply in the Administrative or CRB Hearings

Student has a limited right of cross-examination through the Chair of the CRB

Generally the disputing parties are both present Hearsay is permitted The Chair may exclude evidence that is not

pertinent, redundant, unintelligible, illegible, etc.

11

Evidence – Introduction of Prior Bad Acts

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Ohio v.

Ridgeway, 2004)

¶15-19, Evid. R. 404(B)

12

Evidence – Introduction of Prior Bad Acts

Example: Individual is issued a no trespass

warning for your campus and subsequently

violates that order. It may not be a violation of

due process to introduce that prior act for the

purpose of demonstrating the individual knew s/he

was not welcome on your campus and to state the

basis for which the no trespass warning was issued.

This would be permissible to establish knowledge.

13

Confrontation Need not be provided by college officials

(Hart, 1983).

Court did not find it prejudicial that one witness was shielded from the view of the accused, as the accused was able to review the truth of the witness and rebuttal evidence (Cloud v. Boston University, 1983).

14

Cross-Examination Court found lack of cross-examination

was prejudicial to the accused student as the decision rested on the relative credibility of the accused student versus the alleged victim (Donohue v. Baker, 1997).

No cross-examination necessary for adequate due process (See Winnick, 1972; Gorman, 1988; Boehm, 1990; Hall, 1994; Roach, 1997).

15

TRUE OR FALSE?3. A college or university has

no legal right to hear cases that involve behaviors that occur off campus.

16

TRUE OR FALSE?4. The hearing may be held in

the absence of the accused, if proper notice is provided.

17

SPECIFIC PROCEDURAL PROTECTIONSWhat Must be Provided?

“In fostering and insuring the requirements of due process, however, the courts have not and should not require that a fair hearing is one that necessarily must follow the traditional common law adversarial method. Rather, on judicial review the question presented is whether, in a particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law trial.”

[Gorman v. U. of Rhode Island, 837 F.2d 7, 14 (1988); 646 F.Supp. 799 (1988).]

18

TRUE OR FALSE?5. There is no required

limitation on self incrimination at a student judicial hearing.

19

SELF-INCRIMINATIONNo Miranda warning is

required.A student may properly be

cautioned, if parallel criminal charges are pending.

20

TRUE OR FALSE?6. Accused students have the

right to present evidence on their own behalf.

21

STUDENT PRESENTS DATA

Absolutely! As long as the information is pertinent to determining whether or not the student violated the Code of Student Behavior.

Some limitations—ex., cannot submit 50 witnesses to say the same thing or to tell us what a great person s/he is.

Remember that the burden of proof is on the University, not the student.

22

TRUE OR FALSE?7. “Beyond a reasonable

doubt” is the standard of proof typically used by colleges and universities.

23

STANDARDS OF PROOF

Beyond a reasonable doubt—a criminal standard of proof

Clear & convincingPreponderance of the evidence

(more likely than not)

24

TRUE OR FALSE?8. “Procedural due process”

can best be described as fundamental fairness and reasonableness.

25

PROCEDURAL DUE PROCESS

Focuses on means or method of regulation—was the process fair?

Involves notice, hearings, and other procedures

“When a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.” (Tedeschi v. Wagner College, 1980)

26

PROCEDURAL DUE PROCESS Notice at NDSU is almost always written, unless

the student accepts a waiver of written notice (In re Trahms (1997) four days oral notice was acceptable to the court).

Description of actual misconduct--Who, What, When, Where.

State specific rule(s) or policies violated (Soglin v. Kaufman, 1969; Fellheimer v. Middlebury College, 1994; Tigrett, 2002)

Date, time and place of hearing, assuring the student adequate time to prepare a defense

State maximum likely sanctions

27

Are all Procedural Deviations Fatal? If a student knowingly & freely waives a

right. If deviations are minor & do not impair

fundamental fairness. If institutional safeguards exceed

constitutional minimums. Interim/Emergency Suspensions

Cases: Winnick v. Manning, 1972; Hill v. Indiana University, 1976; Jones v. U. of NC, 1983; Clayton v. Princeton, 1985; Schuler v. U. of MN, 1986; Gorman v. U. of Rhode Island, 1988; Trotter v. U. of New Mexico, 2000; Cobb v. U. of VA, 2000.

28

TRUE OR FALSE?9. The principle of “substantive

due process” suggests that colleges need to make their code (prohibited conduct) clear and understandable.

29

Vague, Ambiguous, or Overboard Rules“Such a regulation is unconstitutionallyvague if people of common intelligence must guess at its meaning and differ as to its applicability.” Reliford v. University of Akron, 610 NE.2d 521, 522

(Ohio App. 9 Dist. 1991).

30

SUBSTANTIVE DUE PROCESS “To establish a violation of substantive due

process, a student must demonstrate arbitrary and capricious conduct on the part of the University officials by showing that there was no rational basis for the University’s decision or must show that the dismissal was motivated by bad faith or ill will unrelated to academic performance.” [Roach v. University of Utah, 968 F.Supp. 1446, 1455 (D. Utah 1997). See also Hill v. Michigan State University (W.D.Mich. 2001) and Organiscak v. Cleveland State University (Ohio Ct. Cl. 2001)].

31

Impartial Hearing Officers (Bias)

Hearing officers are not biased:

simply by virtue of their positions

because they are knowledgeable about a specific case

The student bears the burden of proof concerning allegations of bias.

“...in a university setting, a disciplinary committee is entitled to a presumption of honesty and integrity, absent a showing of actual bias” (Hill v Michigan State University, 2001, citing Ikpeazu v University of Nebraska, 775 F.2d 250, 254 [8th Cir. 1985]).

32

Commingling of Prosecutorial & Adjudicational Functions

May give rise to sheer speculation of bias [Jackson v. Indiana University of Pennsylvania, 695 A.2d 980 (Pa.Commw.Ct. 1997).]

Does not necessarily violate due process or prove administrator bias (Blanton v. SUNY, 1973; Clayton v. Princeton, 1985; Osteen v. Henley, 1993).

“Just as a judge, though paid by the state, may decide controversies between citizens & the state, so too may employees of universities, even if selected by university officials, sit in judgment when those very universities bring charges against students.” (Dutile, 2001)

33

TRUE OR FALSE?10. Interim suspension before

a hearing should never be used as it suggests guilt and violates the rights of the accused.

34

INTERIM/EMERGENCY SUSPENSIONS

Student must represent an imminent & substantial threat to life or property disruption of the academic process

Hearing should follow quickly (w/n 5 days) Decisions should be made by a high ranking

University administrator Advisable to consult with legal counsel

35

TRUE OR FALSE?11. While not legally required,

an appeal process is strongly recommended.

36

APPEAL OR REVIEW? There is no constitutional right to an

appeal (Winnick v. Manning, 1972; (Nash v. Auburn University, 1975).

Our Code provides for one level of a timely appeal by request for one of four specific reasons outlined in the Code of Student Behavior.

Generally, an appeal is a review of the record, not a rehearing of a case (Dutile, 2001), also known as a de novo appeal.

Sanctions may decrease, but not increase.

37

TRUE OR FALSE?12. Fining students for

violations of the Code of Student Behavior is strongly recommended at both public and private colleges and universities.

38

TRUE OR FALSE?13. The Fifth Amendment

privilege against self-incrimination applies to college and university hearings in all cases.

39

TRUE OR FALSE?14. Student due process

includes the right of legal counsel.

40

LEGAL COUNSELSystems vary. Some permit:

No attorney involvement (See Wasson, 1967; Jaska, 1986; Ahlum, 1993;Roach, 1997).

Right to be present to advise client only (See Nash, 1975; Gabrilowitz, 1978; Osteen, 1993).

Full representation by attorney (See Speake, 1971).

41

Allow Use of Legal Counsel When:

Criminal charges are pending

University proceeds through counsel (or law students)

Case is particularly complex

Sanctions may include suspension or expulsion

42

TRUE OR FALSE?15. “Closed” questions are

those that generally require only a one word answer.

43

TRUE OR FALSE?16. “At what time did you leave

the auditorium?” is a good example of an “open” question?

44

THE PURPOSE OF A HEARING

In student judicial affairs, the purpose of the hearing is INVESTIGATORY.

The “jury” (CRB) participates – they are not passive observers.

Goal is to obtain all relevant information.

Truth is revealed, not concealed.

45

TRUE OR FALSE?17. Sexual assault is the most

frequently falsely reported crime in the U. S.

46

WRONG!!!!!!Although often perceived as

such by the general public, sexual assaults and/or rapes are falsely reported no more frequently than any other category of crimes.

47

TRUE OR FALSE?18. “Preponderance of the

evidence” or “more likely than not” is an appropriate standard of proof for colleges and universities to apply.

48

TRUE OR FALSE?19. Women attending colleges

are much more likely to be assaulted by someone they know than by a stranger.

49

TRUE!!!At least 80% or more of all

rapes are committed by individuals known to the victim.

50

GIVING PROPER CREDIT

The quiz questions were prepared by my good friend, Dr. Lee E. Bird, Ph.D., VP for Student Affairs, Oklahoma State University. I added the additional documentation.

51

Additional Background Information

Information on the following slides may help you better understand the Constitutional framework that forms the legal boundaries for processing complaints that students may have violated provisions of Rights and Responsibilities of Community: A Code of Student Behavior.

52

Constitution of the United States of America

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within protection of the laws.

Fourteenth Amendment, Section I Fourteenth Amendment, Section I

53

Due Process Required by Both the 5th and 14th Amendments to the Constitution 5th Limits Federal Government 14th Applies to States and has Three

Parts: Privileges and Immunities Equal Protection Due Process

54

Definition of Due Process

“Due Process” is an elusive concept. Its exact boundaries are undefinable and its content varies according to specific factual contexts... Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on the proceeding, are all considerations which must be taken into account. (Hannah v. Larche, 363 U.S. 420, 442 (1960), A non-higher education civil rights case).

55

General Character of Due Process

Not a rigid or precise concept A number of different interpretations exist Justice Stevens--“Has the person

received all the process which is due?” How is this determined--often a balancing

test is used [see Mathews v. Eldridge, 424 U.S. 319 (1976)].

56

Two Types of Due Process Procedural Due Process

Substantive Due Process

57

Substantive Due Process Rights “‘Substantive due process rights’ are those

fundamental rights and liberties which are, objectively, deeply rooted in this nation’s history and tradition; they are those rights implicit in the concept of ordered liberty, such as the right to marry, to have children, to use contraception, and to rear and educate one’s children.” Hill v. Board of Trustees of Michigan State University, 182 F. Supp. 2d 621, 622 (W.D. Mich. 2001)

58

IN THE HIGHER EDUCATION SETTING

Academic Due Process

Disciplinary Due Process

Academic Disciplinary Due Process

59

Property v. Liberty Rights

“Any type of right to specific property whether it is personal or real property, tangible or intangible.” (Black, Nolan, & Nolan-Haley, 1991, p.847)

Right to a residence hall room Right to continue a course of study Right not to lose property arbitrarily or

capriciously

Property Interest:

60

Assumed property rights give rise to a substantive right under the Due Process Clause to continued enrollment free from arbitrary state action (Ewing, 1985; Roach, 1997; Cobb, 2000).

61

Liberty Rights or Interests“[R]ecognized as protected by the due process

clauses of state and federal constitutions.“ (Black et al., 1991, 633)

Right to contract Right to acquire useful knowledge Right to pursue a particular occupation Right to keep good name, reputation, honor, or

integrity (Wisconsin v. Constantineau, 1971)

Right not to be deprived of a future opportunity

62

Important Institutional Documents that may Confer Rights Institutional Bulletins Codes of Student Behavior Honor Codes Athletic Codes of Student Behaviors Individual College Codes of Student Behavior Residence Life Contracts or License-Contracts Admissions’ Public Relations Documents

Other Sources: Accreditation Standards/Policies State Laws

63

Potential Penalties for Insufficient Due Process 42 U.S.C. 1983

Suit in individual capacity Suit in professional capacity

Suit for injunctive relief

Other Possible Bases for Suit:

Title VII, Title IX Equal Protection Clause of 14th Amendment

64

[I]t is not sound to draw an analogy between student discipline and criminal procedure.... Certainly these [university] regulations are not to be compared with the criminal statute.... Let there be no misunderstanding as to our precise holding. We do not hold that any college regulation, however, loosely framed, is necessarily valid. We do not hold that a school has the authority to require a student to discard any constitutional right when he matriculates. We do hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it has power appropriately to protect itself and its property; (cont.)

65

(cont.) that it may expect that its students adhere to generally accepted standard of conduct; that as to these, flexibility and elbow room are to be preferred over specificity; that procedural due process must be afforded... by way of adequate notice, definite charge, and a hearing with opportunity to present one’s own side of the case and with all necessary protective measures; that school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure; and that the courts should interfere only where there is a clear case of constitutional infringement.” --U.S. Supreme Court Justice Blakmun (then an 8th Circuit Judge), Esteban V. Central Missouri State College (8th Circuit, 1969)

66

Public Versus Private Institutions

Public Agents of the state or state actors

(Williams v. Wheeler, 1913) Constitutional rights & protections are primary Contractual rights & protections also apply

Private Rarely considered agents of the state Contractual rights & protections are primary Constitutional rights rarely apply

67

Standard of Review in Private Institutions

Arbitrary or Capricious (See MU Chapter of Delta Kappa Epsilon; Ahlum, 1993)

Administrators must Act in Good Faith, Without Ill Will (See Wasson, 1967; Winnick, 1972.)

Failure to Follow Own Policies/Procedure (See Weidemann, 1992; Melvin, 1993; Gruen, 1995; and Smith v. Denton, 1995.)

68

Standard of Review in Private Institutions (continued)

“Courts are generally reluctant about second-guessing academic and disciplinary decisions made by private schools. This deference derives from commendable respect for the independence of private educational institutions and a well-justified laissez-faire attitude toward the internal affairs of such institutions” (Morris v. Brandeis University, 2001, p. 13).

69

The Standard of Due Process

“As we tirelessly but unavailingly remind counsel in this court, a violation of state law (for purposes of this case the student judicial code may be treated as a state law) is not a denial of due process, even if the state law confers a procedural right. The standard of due process is federal.” [Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 993)]

70

The Decision Was a specific rule, policy, or law violated?

Is the evidence sound? Unfounded? Are the witnesses credible?

Were there mitigating circumstances? Extreme provocation Mistaken identity

71

The Sanction Must be suspended while appeal is underway

Exceptions: substantial risk to persons or property

What can be Imposed as Sanctions? Foo v. Indiana University, 1999

Stay on prescription meds Meet weekly/biweekly with mental health M.D. Meet with U.Administrator at least monthly

Transcript Notations See Schulman v. Franklin & Marshall, 1988

State v. Kauble, 1997 One year disciplinary probation, 100 hours

community service

72

Purposes of Sanctions

To protect the integrity of the U. and it resources To rehabilitate the accused To help the student remain in school & graduate To protect the safety of others To reinforce behavioral expectations To promote moral & ethical development To foster mature behavior & respect for others

73

The Record Written Final Decision Include findings of fact Include conclusions/rationale of decision makers Deadlines Sanctions Terms for reentry, if any. Restrictions/No Trespass Consequences for Non-Compliance Retention Schedule Access to Records Video - &/or Audiotaping

Provide accountability Provide checks for procedural error Provide defense against bad faith/bias/ill will Provide basis for student’s appeal

74

Form of the RecordStudents are not necessarily owed: Stenographic records Audiotaped records Verbatim transcripts

See Jaska, 1986; In re Trahms, 1997

75

“We find no merit in appellant’s woefully underdeveloped contention that due process requires schools to supply a transcript of the hearing, make findings of fact and to allow the presence of counsel.” Flynn v. U. of Scranton, 1999

“Among other lessons, the outcome of Donohue underscored the need to develop a complete hearing record in anticipation of post-hearing litigations.” Baker, 2000, p. 25, discussing Donohue v. Baker, 1997

76

Preliminary Injunction Standard--Four Elements

The probability of the movant’s success on the merits.

The prospect of irreparable harm absent the injunction.

The balance of the relevant equities--(focusing upon the hardship to the movant if an injunction does not issue as contrasted with the hardship to the nonmovant if it does.)

The effect of the court’s action on the public interest.