LEGAL BOUNDARIES AND DUE PROCESS Fall Semester 2008 Nona L. Wood Associate Director of Student Rights and Responsibiliti

1. LEGAL BOUNDARIES AND DUE PROCESS Fall Semester 2008 Nona L. Wood Associate Director of Student Rights and Responsibilities North Dakota State University, Fargo, ND Nona.Wood@ndsu.nodak.edu

2. Purposes of Due Process in Student Hearings • Reduce risk of wrongful accusation • Conduct an objective investigation • Provide administrator accountability • 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 • “[R]equires consideration of the cost of the additional procedure sought, • [T]he risk of error if it is withheld, and • [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. DueProcess: Balancing

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 PROTECTIONS What 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-INCRIMINATION • No 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 & convincing • Preponderance 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 unconstitutionally vague 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 COUNSEL Systems 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.