Due Process

No Suspension Without Hearing in University Student Disciplinary Proceedings

Plus "An accused student's rights must be guaranteed—not left open for interpretation."

|The Volokh Conspiracy |

In Doe v. Baum (2018), the Sixth Circuit held that the Due Process Clause secures a right to cross-examine witnesses in public university disciplinary proceedings, at least where the witnesses' credibility is at stake. In Tuesday's Doe v. Univ. of Mich., 2020 WL 1433848, Judge Arthur J. Tarnow (E.D. Mich.) followed this and built on it. First, the simple application of Doe v. Baum to the old 2018 Policy:

To be entitled to summary judgment on his Due Process claim, Plaintiff has to prove that there is no genuine dispute as to the following material facts: (1) he was accused of misconduct; (2) a finding of guilt would have lead to the deprivation of a protected Due Process interest; (3) the facts of his case placed credibility at stake; (4) he was deprived of a live hearing with an opportunity to cross-examine witnesses.

There is no dispute that (1) on March 20, 2018, a female student accused Plaintiff of sexual assault in violation of the University's sexual misconduct policy; (2) a finding of guilt could have resulted in a serious sanction such as suspension or expulsion; (3) since there were no witnesses to the incident in question, a finding would have to be based on a credibility determination; (4) Defendants subjected Plaintiff to an investigation under the 2018 Policy that did not afford him a live hearing with cross-examination. Accordingly, Plaintiff is entitled to judgment as a matter of law on his due process claim.

Second, more application plus a bit of further development, as to a later policy that the University had revised in light of Doe v. Baum:

By providing accused students with an opportunity for a hearing and cross-examination in front of a neutral officer, the University's Interim Policy is closer to complying with the requirements of due process than the 2018 Policy. However, some aspects are still in need of revision for full compliance.

First, the condition under which a hearing is required under the policy is vague. It merely states that a hearing will be provided "where warranted," without further explanation. The Sixth Circuit is clear that a hearing is warranted when a fact finder "has to choose between competing narratives to resolve a case." The University's Interim Policy should be similarly clear in order to dispel confusion and hold their administration accountable to provide a fair process in every case. An accused student's rights must be guaranteed—not left open for interpretation.

Second, the Interim Policy allows the University to impose serious interim sanctions without a hearing. These sanctions can be imposed after a complaint is filed, but before any determination of responsibility has been made. They range from a no contact directive to a suspension. Imposing a suspension, prior to a hearing and adjudication is unconstitutional. "[I]f a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension." Doe v. Baum. The University may not include suspension as an available interim measure against an accused student.

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  1. Why don’t universities cut to the chase and order physical castration and total emasculation of all male undergraduates, including all female undergraduates with male genitalia. It might also be necessary to remove their hands and their tongues. Come to think of it, since “elevator eyes” constitutes rape, it may be necessary to remove their eyes too. Then and only then will female students be safe.

    1. The only problem with your take is that, if fully implemented, there would be no men left to emasculate and that would be fatal to feminism.

    2. During the lockdown I’m going to have to watch the movie PCU again.

      1. A caveat — that ending would never happen in real life for a variety of reasons. She’d “control” the students the way that UMass does — with SWAT teams and licensed violence by other students. And as to the inflammatory speech, he’d have died there on the deck — the police would not have protected him from mob violence.

        That’s reality.

        Instead, may I suggest looking through the FIRE website (thefire.org) or reading Silverglate & Kors Shadow University?

  2. Most university policies being with a policy objective. I always felt like reading the school’s policy on anything dealing with sexual assault/harassment was to “find male students guilty with as close to summary justice as the law and outward facing decency will permit..”

    The “single investigator model” is a horrible idea. Empower an ideologue that is trained in thinking 3 out of 4 women on campus are raped, etc. etc. to be literal judge, jury, and executioner and well you get end result which is the actual purpose of most of these policies.

    1. “Empower an ideologue that is trained in thinking 3 out of 4 women on campus are raped,”

      And trained to believe that it’s been show that only a small percent of allegations are false.

      And trained to believe that the fact that a woman changes her story or can’t remember details is evidence that the story is credible.

      1. Let’s get real — the vast majority of these Title IX investigators are rape “survivors” — women who were themselves raped (sadly, it does happen) and who then became ideological “survivors” in that they haven’t put it behind them like a bad car crash but continue to relive it.

        Hence they not only view the accused male student as a potential rapist but as the man who raped them and hence you get a situation similar to where the GIs who liberated Nazi death camps started shooting random German civilians — which happened.

      2. Yeah the list is pretty long hence why I just put etc. etc.

        These investigators are literally taught that in these circumstances that victim statement are to be believed as truth and that (usually male students) are trying to avoid responsibility by making assertions of consent.

  3. What needs to be scuttled from the jurisprudence, across the spectrum of constitutional rights, is the proposition that, as long as there is a post-deprivation remedy theoretically available, one has not suffered a cognizable injury.

  4. WOW! WOW! WOW!!!!!!!

    Let me first state that none of this is in the Higher Ed press, which is discussing how state quarantine laws are fustrating prosecutions, how higher ed needs even more than the reported $6B bailout, and how evil conservatives are “weaponizing” on-line lectures. (Perhaps professors ought not say things they don’t want to appear in a Charlie Kirk tweet….)

    Second, I know this is only valid in the Sixth Circuit (although Professor Volokh might want to both emphasize that and explain what the Sixth Circuit *is* as a lot of non-lawyers are going to be reading this). Likewise, a review of the diversity amongst the circuits would be interesting as the First has gone almost the entirely opposite way, particularly in suits against UMass.

    Third, (I presume) this only applies to public institutions, which have to meet a higher standard because they are state actors, although there are some states where state law mandates private IHEs extend their students the same Constitutional protections, at least in terms of free speech.

    Fourth, over the past 30+ years, the Michigan Federal District has been particularly pro-student, at least on free expression. Doe v. UMich was a landmark decision (1989?) throwing out the first generation of college speech codes, it was a Michigan court that threw out the “Jake Baker” prosecution, and a few more. And I do note that _Grutter v. Bollinger_ came out of Michigan as well.

    A related, not quite tangential aspect to this is the extent to which the courts defer to academia and are unwilling to second guess academic decisions (really the basis of _Grutter v. Bollinger_) and the Sixth Circuit clearly is far more willing to do that than the First Circuit is. And ED-OCR field offices are organized by Federal Circuits, something a lot of people outside academia forget — this is why ADA means one thing if your school is in the First Circuit and almost the exact opposite if it is located in the Second Circuit.

    That said — WOW! 🙂 🙂 🙂 🙂 🙂 🙂 🙂

    Like an iceberg, 9/10ths of this decision is below the surface, and while what is visible above the waterline is impressive, what is below it is even more significant.

    IHEs (Institutions of Higher Education) responded to the Virginia Tech Shooting by creating “Behavioral Intervention Teams” (BITs). Called by a variety of Orwellian names, these BITs consist of Division-level administrators (e.g. Dean of Students, Police Chief, Director of Mental Health, Provost, Director of Campus Housing) who meet in secret to discuss “students of concern.”

    While perhaps well intended, circa 2007, they have become literal Star Chambers where students are not only tried in absentia but not even told charges are pending against them. What happens is that (if) the BIT decides to expel the student, the first the student knows of it is when the campus police tell him he must immediately leave campus and will be arrested if he returns — as to his possessions in his dorm room, sucks to be him.

    Technically it’s an “interim sanction” — “Interim Expulsion*” that takes effect immediately. Sure you can request a hearing, which the university will be happy to provide you a few months from now, although I wouldn’t bother even asking because all the hearing can do is provide a “recommendation” to the Dean who has already made her decision at the BIT meeting. And even more Orwellian is the fact that the hearing board is prohibited from telling the student their finding — the recommendation to the dean is secret AND she’s already told the student what her decision is.

    “…providing accused students with an opportunity for a hearing and cross-examination in front of a neutral officer…” — but what if administrators three levels higher have already decided both guilt and punishment? Yes, the hearing officer is technically “neutral” but will be fired if she defies her supervisor’s supervisor’s supervisor.

    Like I said, that’s part of the iceberg.

    Two decades ago, Harvey Silverglate and Alan Kors wrote a book entitled Shadow University which I would recommend for anyone trying to understand how higher education has become the mess that it is today. One of their points is that there is the actual university governance structure, and than a shadow one behind it that is actually running things — and they wrote that before the BITs arrived.

    And what my reading on this decision, as described by Professor Volokh, is that UMass Amherst, Dartmouth, and possibly Lowell likely would be sued into financial exigency if Massachusetts were located in the Sixth Circuit instead of the First…

    ———-
    *I use the word “expulsion” rather than “suspension” because, increasingly, there is no distinction between the two — as an expelled student could always reapply for admission and suspension policies increasingly are being modified to require the same (with no guarantee of readmission after the term of suspension), suspension has become de-facto expulsion.

    1. What the First Circuit did say, in a suit against UMass Amherst, was that waiting until the end of the *following* semester to accord a student a hearing after he had been removed via interim sanctions was a violation of his due process rights.

      I’m citing this from memory — the easiest way to look it up would be a search for Enku Gelaye (the dean) who was also named as a defendant.

      And I’m not even getting into the extent to which academia is adopting the Soviet concept of punitive psychiatry and “Slowly Progressing Schizophrenia.” In most (all) states, the mental health laws are a total end-run around due process and that route is often being taken as well.

  5. I wonder how many of these failed “remedies” were imposed by Ed.D’s., instead of J.D’s.? If the former, they’re bound to “have issues.”

    1. As an Ed. D., I have to say “neither” — most of the people doing this have (at most) an M. Ed in something like “Social Justice” or a M.A. in one of the “studies” fields. They have neither the work ethic nor personal discipline to actually write (and defend) a 200+ page dissertation.

      There’s also no shortage of J.D.s who (for whatever reason) have never taken the bar exam, let alone ever practiced law. These, IMHO, are the most dangerous because they imply the credibility of being a lawyer without ever stating that they aren’t — and no one realizes this unless you look them up (which is now easier with states putting this ability on their websites). And I’ll leave out how they got into law school in the first place…..

      But the underlying issue is that a lawyer is an advisor as well as advocate, and IHEs have lots of money to pay for advice. There literally is an Association of Title IX Administrators (atixa.org), along with no shortage of lawyers willing to advise IHEs how they can do what they wish to do. The problem is the lack of attorneys on the other side, and that (for a variety of reasons), lawsuits against universities are not lucrative.

      There are JDs behind this — nationally known (at least in higher education) attorneys and I’m choosing not to name them, but you don’t have to go too deeply into the education literature to find them. And most of the head folk at ED-OCR are JDs, but I’ve never had occasion to see how many are a member of any state bar.

      1. This may not be a fair analogy, but imagine a country where we didn’t have “slip & fall lawyers” — and where all the stores and such had unlimited funds to obtain the best of advice (as well as advocacy) from defense counsel.

        Might there be a somewhat more nonchalant approach be taken towards customer safety?

        No, store managers wouldn’t be J.D.s either — but they might do things quite differently (on the advice of J.D.s) in an environment where liability is not the issue it is today.

      2. As an Ed. D., I have to say “neither” — most of the people doing this have (at most) an M. Ed in something like “Social Justice” or a M.A. in one of the “studies” fields. They have neither the work ethic nor personal discipline to actually write (and defend) a 200+ page dissertation.

        This is manifestly untrue. I know quite a few counterexamples. You don’t know much about those disciplines, it seems.

  6. Is it possible? legal? to craft a law saying that the criminal justice system has the ***exclusive*** right to investigate and adjudicate crimes?

    I think that when you allow untrained amateurs (university staff) to assume the power of police and courts the result is pretty darn foreseeable.

    Catholic Church, universities, Boy Scouts, Bar Associations, Medical Associations, same problem.

    1. Whom is the university seeking to imprison?

    2. No, but for a different reason — they AREN’T investigating crimes.
      Instead, they are maintaining academic and behavioral standards of their institution. This is why it doesn’t become double jeopardy when a state university does it.

    3. anorlunda: Can you elaborate on how this would work with regard to employers? Say that an employee claims a coworker stole from the company. Under your law, would it be illegal for the employer to investigate the matter to decide whether the coworker should be fired? (Assume the employer calls the police or the prosecutor’s office, and the prosecutor says, “We won’t prosecute because we think there’s only a 75% chance the coworker is guilty, and that’s not good enough for proof beyond a reasonable doubt.”)

      Or say that your child accuses the nanny of having beaten him (which would be a crime). Would it be illegal for you, as the nanny’s employer, to investigate the accusation to decide whether to fire the nanny? (Again, you might call law enforcement, but they might say that there’s only a 75% chance that she’s guilty, so they won’t prosecute.)

      Or say that you run a restaurant, and a waitress accuses a customer of fondling her; a couple of other waitresses say the customer had done the same, but again the prosecutor decides not to prosecute. Would it be illegal to investigate the accusation to decide whether to refuse to let the customer back on your property?

      And if your law would allow businesses to investigate alleged criminal misconduct by employees or patrons, to decide whether to fire them or refuse to allow them back, why would it forbid universities to investigate alleged criminal misconduct by students, to decide whether to expel or suspend them?

      1. Imagine that homecooked food has not been invented and the only food sources are restaurants, and that whenever a customer is kicked out of one restaurant, other restaurants will force him to tell them, so they can kick him out too. In addition, the only way to buy food is four years at a time.

        A waitress accuses a customer of fondling her so you, without a trial, kick out the customer, keep his four years of money, and prevent him from going to any other restaurants because they’ll all find out that he’s been kicked out, and since restaurants are the only way to get food, he basically can’t buy any food at all. I would certainly prefer that that be illegal.

        1. Ken Arromdee: I appreciate your argument, but what do you think about the employment scenarios, where the blacklasting effect you mentioned may well be present? Often, especially in a small industry (or at high levels within an industry), being fired from a job does make it harder for you to get a different job. (Even if the employer doesn’t explain the reason for the firing, word may get around, and in any event future employers might assume the worst — or might “force [the prospective employee] to tell them” why he lost his earlier job.)

          Would you say that the employer then has to keep the employee, in the absence of a criminal trial and conviction, even if it has heard a plausible allegation that the employee has been stealing from the company (or sabotaging equipment or assaulting coworkers or what have you) — and even if an investigation would lead the employer to conclude the charges are, more likely than not, accurate (though not beyond a reasonable doubt)?

          1. “Would you say that the employer then has to keep the employee, in the absence of a criminal trial and conviction, even if it has heard a plausible allegation that the employee has been stealing from the company (or sabotaging equipment or assaulting coworkers or what have you) — and even if an investigation would lead the employer to conclude the charges are, more likely than not, accurate (though not beyond a reasonable doubt)?”

            I’ve actually seen that happen at UMass. In one case where the employee (groundskeeper) was fired upon being arrested, they had to retroactively rehire him (with back pay) when the case was dismissed on a technicality. In another, they had to wait until the employee was incarcerated (for something else) at which point they terminated him for inability to show up, although that may have been a disability retirement. I’ve seen tradesmen having a fistfight (in a children’s playground of all places) and getting away with that because the DA declined to prosecute. Etc…

            This is the power of the public sector unions — and I compare that to the rights that students do not have.

      2. I make a distinction between employees and students — employees can organize (i.e. form a union), negotiate a contract, and grieve perceived violations of it. Students have no such rights.

        And a lot of this occurs OFF CAMPUS — which means that some citizens have less rights than other citizens because they are receiving a public benefit (attending a state university). Why can’t that be extended to citizens receiving other benefits (e.g. SNAP/Food Stamps)? Why can’t the SNAP people cut off benefits because the recipient had a loud party, even though there was no criminal prosecution for it?

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