The Right to Due Process in College Disciplinary Hearings
The problem of unfair disciplinary proceedings is exacerbated when the alleged misconduct involves a sexual assault, because federal agencies are pressuring schools to pay more attention to the rights of the accuser, even at the risk of imposing unjust discipline upon an innocent student.
Safeguards are LackingI recently wrote a Primer on College and University Disciplinary Hearings. That three-part series emphasizes how easy it is for students to be falsely accused of misconduct and how difficult it is for them to defend themselves when the school decides to expel, suspend, or otherwise discipline them. The problem of unfair disciplinary proceedings is exacerbated when the alleged misconduct involves a sexual assault, because federal agencies are pressuring schools to pay more attention to the rights of the accuser, even at the risk of imposing unjust discipline upon an innocent student. All students deserve a safe education, but treating accused students unfairly contributes nothing to safety. Due process safeguards in student disciplinary hearings are designed to assure that innocent students do not lose valuable rights, including the right to an education. Key elements of due process include notice of the allegation and access to the evidence upon which discipline will be based, an opportunity to confront the accuser, the chance to present a meaningful defense, and a neutral decision-maker who has not prejudged the validity of the accusation. Sadly, those safeguards are often lacking, even though the Constitution demands that state-supported colleges and universities provide due process in disciplinary proceedings. From my review of cases around the country and my own representation of students facing discipline, I am keenly aware that colleges and universities too often disregard their obligation to accord fundamental fairness to students who are accused of misconduct. To their credit, students whose rights have been violated are fighting back. They are increasingly turning to civil rights lawsuits against the public colleges and universities that imposed unfair discipline. A recent example involves a former student at the University of Montana.
The Case Against Jordan JohnsonBefore he was accused of sexual assault, some college football observers regarded Jordan Johnson, the star quarterback for the Montana Grizzlies, as NFL material. He was suspended from the team and missed a full season of play after being accused of raping a fellow student. The accusation resulted in University disciplinary proceedings and a recommendation of expulsion. Jordan eventually signed with a team in the CFL. Jordan was accused of raping the student while they were watching a movie in the student's bedroom in her off-campus apartment. Jordan's accuser claimed that they were making out when she told Jordan, "not tonight." She said that Jordan later had sex with her without her consent and that she resisted him by using her hands and knees. There was good reason to doubt the student's accusation. While she was still in the bedroom, she sent a text to her roommate, who was in the living room, that said "I think I might have just gotten raped." The equivocal nature of that text suggests that the woman had doubts about whether she was sexually assaulted. Even if she believed that she had not consented to sex, it is not clear that she communicated her lack of consent to Johnson. The accuser waited a month before she reported the incident to the police and waited another two weeks before pursuing a restraining order against Johnson. According to Johnson, their relationship ended immediately after they had sex because Johnson wanted to date other women. The accuser's delay in advancing a sexual assault allegation might be explained by her displeasure that Johnson rather rudely withdrew his attention from her. Six months after the incident, prosecutors decided to charge Johnson with sexual assault. During his trial, Johnson testified that he believed the accuser had consented to sex. The jury accepted that testimony and found Johnson not guilty. Johnson's disciplinary proceeding Although Johnson clearly had a strong defense to the sexual assault allegation, the University of Montana gave him no opportunity to defend himself before it recommended his expulsion. The Dean of Students conducted an internal investigation and decided Johnson was guilty. The investigation was not conducted by an outside, neutral party and Johnson was given no meaningful opportunity to challenge the evidence before the Dean of Students recommended his expulsion. Johnson appealed the Dean of Students' finding to the University Court -- a standing tribunal appointed by the university president that includes three undergraduate students, one graduate student, two faculty members and one member of the university staff. After a hearing, the University Court voted 5-2 to find Johnson guilty of rape. The University then expelled him. Johnson appealed the expulsion to the University president, who decided that Johnson received a fair hearing. Johnson then appealed to Montana's Commissioner of Higher Education, who decided that the evidence was insufficient to warrant the expulsion. Johnson's settlement Johnson notified the State of Montana that he intended to sue the University. He contended that the Dean of Students and other University officials prejudged his guilt and conducted a biased investigation. His proposed lawsuit alleged a violation of his right to due process. While denying that it did anything wrong, the State agreed to pay Johnson $245,000 to settle the claim before suit was filed. Most lawsuits are settled without an admission of wrongdoing, but the size of the settlement calls into question that State's assertion that it believes it would have prevailed if the case had gone to trial. It seems more likely that the State wanted to avoid publicity about its unfair investigation of Johnson's conduct. Johnson alleged that the unfair investigation was a response to U.S. Department of Justice criticism of the University's mishandling of rape claims made by students. As I have discussed in the past, the federal government is making it more difficult for falsely accused students to receive a fair hearing by advocating disciplinary procedures that provide not even a modicum of due process. Johnson's legal action is one of more than 50 lawsuits that have been filed against institutions of higher learning on the ground that their disciplinary proceedings deprived students of due process. Students are increasingly prevailing in those lawsuits. Perhaps that trend -- and Johnson's settlement -- will remind public colleges and universities of their constitutional obligation not to prejudge allegations of student misconduct or to impose discipline that does not result from a fair and unbiased hearing.