Seann Kalagher, Associate Dean of Student Affairs at Quinnipiac University
October 31, 2017
As student affairs professionals, the national conversation on campus sexual violence affected, at a minimum, how we ensure equitable application of institutional resources, institutional investigations, and disciplinary processes related to sexual assault incidents. Something that has been lost in the important conversations on due process rights and equity in responding to complaints is the quiet, but possibly transformational, impact this debate has had on private institutions, and the legal framework in which they operate.
For decades, the prevailing legal framework pertaining to student conduct at private universities was one of deference, acknowledging that private institutions operated in a sphere different from that of the constitutional obligations assigned to public institutions. Private institutions have to provide students “proceedings that conform to a standard of 'fundamental fairness' and to protect students from arbitrary and capricious disciplinary action to the extent possible within the system it has chosen to use.” The legal application of “arbitrary” is defined as a “decision made without regard for the facts,” meaning, a decision supported by at least some evidence would not be considered arbitrary. Institutions also have to follow their own published and stated procedures, as stated in the oft-cited case Tedeschi v. Wagner College, “[w]hen a university has adopted a rule or guideline establishing the procedure to be followed ... that procedure must be substantially observed.” These parameters established a large field in which private institutions could operate, but recent years have shown that this field is narrowing, and the determination of what constitutes “fundamental fairness” has much to do with it.
The issuance of the Department of Education Office of Civil Rights 2011 Dear Colleague Letter, which provided extensive guidance on appropriate and equitable disciplinary procedures to institutions that accept federal funding, was one of the first broad-based efforts to apply a set of minimum expectations to institutional disciplinary processes en masse. Even for public institutions, the framework first established by Dixon v. Alabama and Goss v. Lopez provided flexibility in constructing institutional disciplinary procedures. These federal guidelines (followed by the 2014 FAQ document) were followed by additional developments at the state level in many states. State-level legislation codified procedural and policy aspects such as affirmative consent and the preponderance of the evidence standard. Beyond federal guidance, two states, New York & Virginia, mandate transcript notations for students found responsible for sexual misconduct at both public and private institutions. With the increased impact and visibility of student conduct decisions at private institutions, courts applied renewed scrutiny on private institutions and the historic deference granted to those institutions.
While court scrutiny on due process provided to respondents increased gradually over the past few years, one case in particular erased much of the line separating the due process expectations at public and private schools. In Doe v. Brandeis University, United States District Judge Dennis Saylor, in denying part of Brandeis’ motion to dismiss, drew clear connections between the due process expectations of public and private institutions. First, the framework Judge Saylor used in evaluating Brandeis’ process was something slightly different from “fundamental fairness”, but something Judge Saylor called “basic fairness.” Within this, the judge found that Brandeis’ process was both procedurally unfair (in regards to the actual published procedures of the institution, including access to information, the standard of evidence, and access to witnesses) and substantively unfair (in that Brandeis staff made incorrect judgements regarding the information they used to make their decision). If these terms sound familiar, they should. They draw strong parallels to jurisprudence surrounding the 14th Amendment of the United States Constitution, which includes the legal doctrines of procedural due process and substantive due process. The judge also made a clear statement regarding the deference afforded to private institutions, saying:
“It is well-established, however, that a private university ‘is not required to adhere to the standards of due process guaranteed to criminal defendants or to abide by the rules of evidence adopted by courts.’ However, courts may refer to those rules in evaluating the fairness of a particular disciplinary hearing.”
The Brandeis case, decided in March 2016, has been cited several times in recent cases involving accused students, as well as in the interim guidance recently released by the Department of Education.
To adapt to this new reality, private institutions should look to shore up existing policies and processes related to sexual misconduct and other serious student conduct matters. Any process review should evaluate these aspects:
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