The issue of due process has come into the national consciousness as a rallying cry for pause in the face of public accusations. The concept of due process arises in many contexts, from criminal to government employment to regulatory, and all of us know from law school that normally it has technical nuances that would be of little interest to non-lawyers. One can fairly say that courts have established a general framework for what constitutes due process in most contexts.
In one area of law this is not the case -- what constitutes due process for students accused of misconduct and facing suspension or expulsion. This is a hotly contested and controversial area of law that has developed rapidly over the last several years. This increase in published case law has probably taken place because of heightened student awareness of the problem of sexual assault on campus, activism leading to increased reporting, and guidance from the Department of Education, Office of Civil Rights under the prior presidential administration, imposing more stringent requirements on colleges and universities to combat sexual assault on campus.
California appellate courts have taken a leading role in developing a body of law for public and private colleges and universities, with three important decisions. Each case involved allegations of sexual misconduct, which have special concerns, for example, regarding cross-examination of alleged victims. The general due process and fairness considerations, however, will apply outside that context to student discipline generally. And there are more cases are on the way.
The basic test for student due process was established in Goss v. Lopez, a 1975 case in which the U.S. Supreme Court held that due process had two over-arching requirements, "some kind of notice" and "some kind of hearing." "Hearing" corresponds to "some kind of meaningful opportunity to be heard." The court did not hold a full evidentiary hearing was required to impose student discipline, i.e., sworn testimony, right to cross-examination, right to introduce witnesses, etc. Instead, due process is a "flexible concept" that depends in substantial part on the severity of the penalty imposed.
Next, not just public but also private educational institutions need to be concerned about precedent in this area. Due process requirements apply only to public institutions because they are government entities. But private institutions must abide by common law rules of fairness (some codified by statute). These rules incorporate or parallel due process rights. Courts sometimes apply the standards interchangeably.
Finally, as a matter of practice, institutions implement different types of models for student discipline -- the "hearing model" and the "investigator model." The hearing model is usually considered the traditional approach. This consists of an investigation, often by an independent firm that the institution hires, followed by a hearing with many of the same components as an administrative hearing -- one or more neutral decision-makers, sworn testimony by witnesses, cross-examination (with safeguards for cross-examination of alleged victims of sexual misconduct), and detailed findings.
Many institutions, both public and private, are adopting the investigator model in which no formal evidentiary hearing takes place. Instead, the student facing discipline (often called the "respondent") receives traditional notice of the charges against him or her, and then a comprehensive investigation takes place, conducted sometimes by a single person and often by an independent firm. This investigation provides the respondent with a meaningful opportunity to be heard. The respondent may also give the investigator documents, names of witnesses, and other information.
But what does the hearing model require regarding cross-examination? If the case involves sexual assault allegations, will due process or principles of fairness entitle the accused student to cross-examine the alleged victim? In the investigator model, what particular rights does an accused student have? And for either model, what is an accused student's right of access to evidence and information?
Case 1: Requirements of the Hearing Model
Doe v. Regents of the University of California, 5 Cal. App. 5th 1055 (2016), helped determine the procedural requirements of the hearing model. The accused student faced charges of nonconsensual sexual contact in the course of a dating relationship. The university conducted a hearing, and the student was found responsible.
The trial court found that UC San Diego had infringed the accused student's rights in the course of his administrative hearing in a number of respects. First, the trial court found fault in the university's screening cross-examination questions posed to the alleged victim and declining to ask her a number of questions proposed by the respondent relating to his communications with her. Second, the trial court found it improper for the university to have placed a partition that blocked respondent from seeing the alleged victim as she testified, so that there was no ability for respondent to confront this witness against him. Third, the trial court pointed out that respondent was not provided the alleged victim's interview statement or other witness statements before the hearing in order to help him formulate a defense.
The Court of Appeal reversed and found the discipline appropriate. Its opinion cautioned that it found some areas for potential concern in the disciplinary procedures at issue, but that nevertheless the accused student had received a full opportunity to present his defense. The court found that the university did not commit reversible error in the hearing in limiting the cross-examination questions. It gave the court "pause" that the university asked Jane Roe fewer than a third of John Doe's proposed cross-examination questions. But the court went on to undertake a detailed analysis of the proposed questions, and John Doe's arguments concerning each, and this led the court to conclude that the university's decisions on cross-examination questions did not prejudice Doe. (The implication from the opinion's discussion is that a hearing panel has to exercise great care in de-selecting or altering a respondent's proposed cross-examination questions.) In addition, imposing a partition between the accused party and alleged victim while the alleged victim testified was also not reversible error. The court observed that there was no sufficient evidence that the panel could not see Jane Roe testify, and that courts have previously considered using partitions during testimony appropriate to avoid trauma to a witness.
The Court of Appeal concluded further that, under the circumstances, the university's not providing notes from Jane Roe's interview or other witness statements before the hearing, in order to help him formulate a defense, did not constitute reversible error. The witness statements, the court observed, did not relate to charges that the university ultimately chose to assert against John Doe, and he did not explain any sufficient prejudice from not having the notes of Jane Roe's interview. That said, the court indicated that it would normally be important to produce such interview notes to a respondent, although the court declined to announce a bright-line rule to that effect.
Case 2: Requirements of the Investigator Model
In Doe v. University of Southern California, 246 Cal. App. 4th 221 (2016), the Court of Appeal issued a published decision setting legal precedent concerning the investigator model. USC is a private institution, so technically due process concepts do not apply to it. The court decided the case under principles of common law fairness using due process concepts.
The Court of Appeal's opinion held that the following flaws existed in the way the university implemented its investigator model. First, the court found that the university outset of the investigation violated notice standards by only citing student code sections to the accused student of the investigation, without describing the facts underlying the charges. The court also found that the university improperly changed the theory of the case after the initial findings and during the internal university appeal process.
The facts of the case concern a group sexual encounter at a fraternity party in which respondent and the alleged victim, Jane Roe, engaged in allegedly non-consensual sex and in which Roe also engaged in sex with others at the party after respondent had left the room. The investigation and report focused on alleged sexual assault by respondent and whether Roe consented to sexual contact with him. But when the case was appealed internally, the appeals panel determined that discipline was appropriate on a different theory, in particular that Doe had encouraged other students during the group encounter to have improper contact with Roe, and that Doe endangered Roe by leaving her in a room with other men. The Court of Appeal observed that because the theory of the case during the investigation was different, John Doe was not provided an adequate opportunity to defend his actions relating to the conduct (e.g., leaving the room) for which he was actually punished.
The Court of Appeal also found that the university violated principles of fairness by not providing John Doe with evidence against him as part of the process. It was not sufficient that the university would have given him the information if he had asked.
Case 3: When Is Cross- Examination Required?
Third, the Court of Appeal issued a decision in Doe v. Claremont McKenna College, 25 Cal. App. 5th 1055 (Aug. 8, 2018), last month that involved one specific but important aspect of the investigation model -- when cross-examination of a complaining witness is required.
Claremont McKenna College used an investigator model in imposing discipline on a student for non-consensual sex. Following an investigation in which the accused student, the alleged victim, and other students were interviewed, a committee found the accused student responsible and he was disciplined. The committee consisted of the investigator and two members of the college community selected by faculty and staff; student witnesses could appear before the committee but the alleged victim did not do so.
The accused student contended that the process lacked required fairness because he had no opportunity to cross-examine the alleged victim or otherwise have her credibility tested. The Court of Appeal agreed, holding that if the "school's determination" regarding discipline "turns on the complaining witness's credibility," then there has to be some type of cross-examination process that allows credibility to be assessed. The holding applies if the student faces a "severe penalty."
The court qualified its holding by pointing out that the cross-examination did not have to be face-to-face with the accused student or his counsel. Instead, other means such as video-conferencing could be used and questions could be posed by the decision makers, rather than the accused student or his counsel.
Further Case Law and Future Cases
Published case law has begun to apply the trilogy of cases described above. On Oct. 9, the 2nd District Court of Appeal, in Doe v. Regents of the University of California, 2018 DJDAR 10084, applied the three cases to determine that a student disciplined at the UC Santa Barbara for sexual assault had been denied due process.
The court, in an opinion by Justice Arthur Gilbert, determined that the procedures at issue had been violated in a number of respects ranging from not producing sufficient information to the accused student before the hearing to excessive limits on cross-examination. The hearing committee had limited cross-examination by not allowing the accused student to assert questioning based on the theory that the alleged victim had experienced side effects of a medication she had been taking and that this affected her credibility.
There are a number of cases currently pending on appeal that involve discipline of students and due process/fairness of proceedings. A significant one, also in the 2nd District, is Doe v. University of Southern California, B271834. This case should shed further light on the legal requirements of the investigator model, including the extent to which it is fair for investigators effectively to serve as decision-makers. In this case, the university expelled John Doe based on a finding he had engaged in sex with a student who was intoxicated and unable to consent. The trial judge rejected the respondent student's administrative challenge to his expulsion, and issued a lengthy decision sustaining the discipline and upholding the university's investigator model system.
In doing so, the court rejected a number of challenges the student had made to the system, including a challenge that the investigator in the case should not have also served as the effective decision-maker. The trial court's order found the use of the single investigator complied with common law principles of fairness, and notions of due process. The court explained that without some showing of impermissible bias, "there is nothing per se improper in [the investigator's] role as both an investigator and adjudicator. Essentially, [the investigator] was both a factfinder who operated on her own initiative and also accepted the party's submission. Contrary to Petitioner's assertion, no evidence in the record suggests [she] was acting as a prosecutor when she investigated the matter."
Oral argument for Doe v. University of Southern California is set for Nov. 1.