1 See Resolutions of the Columbia University Senate, February 25, 2000, available at http://www.columbia.edu/cu/senate/resolutions/99–00/TF022500.html [hereinafter Res-olutions]. The entire text of the Policy is available on the web page of the Office of Sexual Misconduct Prevention and Education at http://www.columbia.edu/cu/sexualmiscon-duct/policy.html. Interestingly, the resolution permitted each of Columbia’s undergraduate and graduate schools to elect to participate in this new Discipline Procedure—-only the Law School elected not to participate and continues to govern student conduct in accordance with a resolution adopted by the Faculty of Law on December 8, 1989, as amended in June 1993 and on November 17, 1995. See University and Law School Regulations, available at http://www.law.columbia.edu/academics/rules/University_Regulations.html.
2 See Jaime Sneider, It’s A Brave New World at Columbia U., N.Y. Post, Oct. 6, 2000. The campaign was also a response to federal and New York state law requirements that colleges and universities promulgate policies and disciplinary procedures aimed at the prevention of sex offenses. See generally Alan Stone, Vice President for Public Affairs, Columbia University, Letter to the Editor, Sexual Assault Policy Still Has Safeguards, Wall St. J., Oct. 11, 2000.
3 See Karen W. Arenson, New Procedure for Handling Sexual Misconduct Charges at Columbia University is Challenged, N.Y. Times, Oct. 5, 2000.
4 See Vivian Berger, Sexual Misconduct Policy: No Due Process at CU, Columbia Spectator (N.Y.), Nov. 21, 2000; Nat Hentoff, Columbia University’s Star Chamber, Village Voice (N.Y.), Nov. 8, 2000; Dawn Santoli NYU Rejects Columbia-like Sexual Misconduct Policy, Wash. Square News (N.Y.), Oct. 12, 2000; Sneider, supra note 2; Norah Vincent, The Accused, Village Voice (N.Y.), Oct. 25, 2000.
5 See Berger, supra note 4; Hentoff, supra note 4; Sneider, supra note 2; Santoli, supra note 4; Vincent, supra note 4. One critic has also charged that the policy has substantive shortcomings as well. See Berger, supra note 4. In particular, the policy defines sexual misconduct as “non-consensual, intentional physical contact with a person’s genitals, buttocks or breasts” and goes on to state that “lack of consent may be inferred from . . . the victim’s mental or physical incapacity or impairment of which the perpetrator was aware or should have been aware.” See Resolutions, supra note 1. These definitions, according to opponents, are over-broad, lack clarity, and therefore do not adequately put students on notice as to what conduct will be violative of the policy. See Berger, supra note 4. As a result, the policy may in fact become a trap for the unwary innocent. See Kors Alan Charles & Harvey A. Silverglate, The Shadow University 268 (1998). A thorough discussion of the criticisms of the substantive shortcomings of Columbia’s policy is beyond the scope of this Note.
6 See Berger, supra note 4; Hentoff, supra note 4; Vincent, supra note 4.
7 See Berger, supra note 4; Hentoff, supra note 4; Vincent, supra note 4.
8 See Berger, supra note 4.
9 Sexual Misconduct Policy and Disciplinary Procedure, available at http://www.columbia. edu/cu/sexualmisconduct/policy.html.
10 See Berger, supra note 4.
11 See id.
12 See Arenson, supra note 3.
13 See Vincent, supra note 4; Ben Wheeler, Letter to the Editor, Due Protection, Village Voice (N.Y.), Nov. 8, 2000; Due Process at Columbia, Wall St. J., Oct. 30, 2000. For further insight into the motivation behind the new policy see the Revised Report of the University Senate Task Force to Review The Sexual Misconduct Policy and Procedure, Dec. 9, 1999, available at http://www.columbia.edu/ cu/senate/annual_reports/00–00/TF1299.html [hereinafter Revised Report].
14 See Revised Report, supra note 13.
15 See Revised Report, supra note 13.
16 See Arenson, supra note 3; Vincent, supra note 4. According to the Due Process Clause of the Fourteenth Amendment, “No State shall . . . deprive any person of life, liberty or property, without due process of law.” U.S. Const. amend. XIV, � 2. The United States Supreme Court has defined Fourteenth Amendment Due Process to incorporate the rights guaranteed by the Bill of Rights, including those guaranteed by the Fifth Amendment (“No person shall be . . . deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V). In general, procedural due process requires that as the penalty becomes more serious, the formality of the procedures must increase. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
17 See Arenson, supra note 3; Vincent, supra note 4. Because public colleges and universities are created by state constitutions or statutes and are funded by state taxes, they are creatures of the states and their decisions, therefore, qualify as “state action” for Due Process purposes. See Osteen v. Henley, 13 F.3d 221, 223 (7th Cir. 1993) (indicating that three Illinois state universities are governed by separate state statutes); Goldberg v. Regents of the Univ. of Cal., 57 Cal. Rptr. 463, 468 (Cal. Ct. App. 1967) (holding that the University of California, Berkeley, is a department or function of the state government pursuant to Article IX, section 9, of state constitution). Public colleges and universities are bound by the Fourteenth Amendment’s Due Process Clause and may not deprive a student of his education without affording him procedural due process. See generally Robert B. Groholski, The Right to Representation by Counsel in University Disciplinary Proceedings: A Denial of Due Process, 19 N. Ill. U. L. Rev. 739, 739 (1999) (arguing that students in public colleges and universities have both a liberty interest and a property interest in their education that require protection by the Fourteenth Amendment and detailing federal and state court cases that have addressed this issue). Groholski’s article provides a good overview of judicial treatment of a student’s protected liberty and property interest in his or her education. See Groholski, supra, at 750–67.
18 See Coveney v. Pres. of Coll. of the Holy Cross, 445 N.E.2d 136, 139 (Mass. 1983) (“A college must have broad discretion in determining appropriate sanctions for violations of its policies.”); Anderson v. Mass. Inst. of Tech., 1995 WL 813188, *1, *4 (Mass. Super. 1995) (“[A] private university has a right to manage its own affairs and to establish its own rules and regulations in the conduct of the university’s business and goals—including student discipline.”); Schulman v. Franklin & Marshall Coll., 538 A.2d 49, 52 (Pa. Super. Ct. 1988) (“A college . . . must be self-governing and the courts should not become involved in that process.”).
19 See Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 244 (D. Vt. 1994); Holert v. Univ. of Chi., 751 F. Supp. 1294, 1301 (N.D. Ill. 1990); Schaer v. Brandeis Univ., 735 N.E.2d 373, 381 (Mass. 2000); Anderson, 1995 WL 813188, at *4; Tedeschi v. Wagner Coll., 404 N.E.2d 1302, 1306 (N.Y. 1980) (“[W]hen a university has adopted a rule or guideline establishing the procedure to be followed . . . that procedure must be substantially observed.”).
20 See Slaughter v. Brigham Young Univ., 514 F.2d 622, 626 (10th Cir. 1975); Anderson, 1995 WL 813188, at *4; Tedeschi, 404 N.E.2d at 1304–05; Psi Upsilon of Phila. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991).
21 See Slaughter, 514 F.2d at 626; Anderson, 1995 WL 813188, at *4; Tedeschi, 404 N.E.2d at 1304–05; Psi Upsilon of Phila., 591 A.2d at 758.
22 See Hazel Glenn Beh, Student Versus University: The University’s Implied Obligation of Good Faith and Fair Dealing, 59 Md. L. Rev. 183, 215–18 (2000) (“Good faith and fair dealing can provide a framework to adjudicate student claims that is not unduly intrusive.”); Curtis J. Berger & Vivian Berger, Academic Discipline: A Guide to Fair Process for the University Student, 99 Colum. L. Rev. 289, 289 (1999); Note, An Overview: The Private University and Due Process, 1970 Duke L.J. 795, 803–06 (1970) (“[T]he student-private university relationship has been examined under several theories unrelated to constitutional law.”); Note, Common Law Rights for Private University Students: Beyond the State Action Principle, 84 Yale L.J. 120, 137 (1974) (“[I]t is not surprising to find the cases floundering in a sea of doctrinal doubt.”); Scott R. Sinson, Note, Judicial Intervention of Private University Expulsions: Traditional Remedies and A Solution Sounding in Tort, 46 Drake L. Rev. 195, 223–30 (1997) (“The unjust expulsion of a student from a university should lie in tort, and not contracts.”).
23 See Slaughter, 514 F.2d at 626 (noting that although some elements of the law of contracts should be used in the analysis of the relationship between the student and the University, contract law need not be rigidly applied); Tedeschi, 404 N.E.2d at 1304–06 (concluding that neither contract law nor association law are wholly satisfactory legal theories upon which to predicate judicial review of university expulsions, but not finding it necessary to resolve the issue in order to conduct a review). But see Anderson, 1995 WL 813188, at *3 (commenting that American courts have generally adopted the idea, although denounced by commentators, that the student’s relationship to the private university is contractually governed by the documents he accepts at matriculation); Psi Upsilon of Phila., 591 A.2d at 758 (noting that a majority of courts have characterized the relationship between a private college and its students as contractual in nature).
24 See Holert, 751 F. Supp. at 1300 (concluding that under Illinois law, a university and it students have a contractual relationship, the terms of which are set forth in the university’s catalogs and manuals); Schaer, 735 N.E.2d at 378 (assuming the existence of a contract between the student and the University and reviewing the student’s allegations of a breach by the school); Coveney, 445 N.E.2d at 138 (disposing of the case on the ground that the college did not violate any contractual right of the student).
25 See Anderson, 1995 WL 813188, at *4; Tedeschi, 404 N.E.2d at 1306; Psi Upsilon of Phila., 591 A.2d at 758.
26 See Anderson, 1995 WL 813188, at *4; Tedeschi, 404 N.E.2d at 1306; Psi Upsilon of Phila., 591 A.2d at 758.
27 See infra notes 31–46 and accompanying text.
28 See infra notes 47–153 and accompanying text.
29 See infra notes 154–201 and accompanying text.
30 See infra notes 202–278 and accompanying text.
31 See Nina Bernstein, Behind Some Fraternity Walls, Brothers in Crime, N.Y. Times, May 6, 1996, at 1 (describing roll of fraternities in campus sexual misconduct cases); Nina Bernstein, College Campuses Hold Court In Shadows of Mixed Loyalties, N.Y. Times, May 5, 1996, at 1 (discussing universities’ internal procedures for investigating and adjudicating student-on-student rape charges); Nina Bernstein, Years Later, Fordham Case Still Haunts Woman, N.Y Times, May 5, 1996, at 1 (describing Fordham’s procedure in a campus rape case and detailing harassment of victim by friends of the accused); Kathryn Kranhold & Katherine Farrish, Anxiety About Sex, Dating, Rape Transforms College Life, Hartford Courant, Oct. 10, 1993, at A1 (noting increased awareness of student-on-student rape and discussing efforts by colleges to use student conduct codes to prosecute allegations); John Silber, Students Should Not Be Above the Law, N.Y. Times, May 9, 1996, at 27 (noting that administration of college judicial codes should not result in sanctuary from the law); Wes Smith, Trial and Error? Did A University Go Too Far in Getting Tough on Date Rape?, Chi. Trib., May 1, 1994 (Magazine), at 14 (discussing Valparaiso University’s handling of a student-on-student rape case). The increased attention given to student-on-student sexual assault on campus also may be traceable to an oft-quoted October 1985 Ms. Magazine survey, titled Date Rape: The Story of an Epidemic and Those Who Deny It, that found that one in four college women is the victim of rape or attempted rape. See Katie Roiphe, The Morning After: Sex, Fear and Feminism 6, 51 (1993).
32 See Smith, supra note 31, at 22. See also Michael Clay Smith & Richard Fossey, Crime on Campus: Legal Issues and Campus Administration 95–96 (1995). In addition, Congress, recognizing the value of rape awareness programs and special services for sexual assault victims, passed the Ramstad Amendment in 1992, requiring colleges and universities to develop campus sexual assault policies. See Smith & Fossey, supra, at 79. The law, codified at 20 U.S.C. �1092(f) (7) (1994), requires higher education institutions to adopt policies to prevent sex offenses and procedures and to deal with sex offenses once they have occurred. 20 U.S.C. �1092(f) (7). It also requires several procedural safeguards including the right of both parties to have others present at the hearing and to be informed of the outcome of any disciplinary hearing. See Smith & Fossey, supra, at 79. Smith and Fossey provide a comprehensive list of the Ramstad Amendment’s other requirements. See id.
33 See Smith, supra note 31, at 22 (citing a 1993 study on campus acquaintance rape by the National Association of College and University Attorneys noting that student-on-student sexual assault is “hands down the most difficult issue that comes up” for college administrators). See generally Kors & Silverglate, supra note 5. Kors and Silverglate argue that the ultimate force of the “Shadow University” is its ability to punish students behind closed doors, far from public and campus scrutiny, and to engage in a systematic assault on due process. See id. at 4–5. See generally Roiphe, supra note 31, at 6 (1993). Roiphe argues that a “new bedroom politics” has entered universities and that there is disagreement over how to define “rape.” See id. at 6, 80–81. Recent definitions, according to Roiphe, stretch beyond acts of violence or physical force to include even verbal coercion or manipulation. See id. at 67. Roiphe suggests that “there is a gray area in which someone’s rape maybe another person’s bad night” and that the broad sweep of this definition has threatened to unfairly minimize the experiences of victims of violent sexual assaults. See id. at 54, 81–82.
34 See Smith, supra note 31, at 22; Kors & Silverglate, supra note 5, at 289–311. Kors and Silverglate are among the most outspoken critics of campus judicial procedures. See Kors & Silverglate, supra note 5, at 289–311. In The Shadow University, they charge that “there is virtually no place left in the United States where kangaroo courts and Star Chambers are the rule rather than the exception—except on college and university campuses . . . where not only is arbitrariness widespread, but where fair procedures and rational fact-finding mechanisms, with disturbing and surprising frequency, are actually precluded by regulations.” Id. at 276. See also Daniel R. Coquillette, The Anglo-American Legal Heritage: Introductory Materials 206–08 (1999) (defining the Court of Star Chamber and noting that it has been portrayed as a bastion of tyranny based on its use of torture and mutilation and the lack of jury trials).
35 See Thomas R. Baker, Cross-Examination of Witnesses in College Student Disciplinary Hearings: A New York Case Rekindles an Old Controversy, 142 Educ. L. Reptr. 11, 22–23; Paul E. Rosenthal, Speak Now: The Accused Student’s Right to Remain Silent in Public University Disciplinary Proceedings, 97 Colum. L. Rev. 1241, 1247 (1997); Sinson, supra note 22, at 196–98; Note, Private Government on the Campus—Judicial Review of University Expulsions, 72 Yale L.J. 1362, 1392 (1963); Lisa Swem, Note, Due Process in Student Disciplinary Matters, 14 J.C. & U.L. 359, 364 (1987).
36 See Baker, supra note 35, at 22–23; Rosenthal, supra note 35, at 1247; Sinson, supra note 22, at 196–98. See also Mark S. Blaskey, University Students’ Right to Retain Counsel for Disciplinary Proceedings, 24 Cal. W. L. Rev. 65, 69 (1988) (maintaining that disciplinary proceedings are by their very nature more complex because they involve adjudicating offenses which might be deemed criminal).
37 See Columbia University’s Sexual Misconduct Policy: Further Comments From a Former Student Panelist, available at http://www/columbi.edu/cu/safer/backlash/formerpanelist. html [hereinafter Further Comments].
38 See Further Comments, supra note 37; Amy M. Holmes, Men, Women: We’re Not that Different, available at http://www.odyssey.on.ca/~balancebeam/courts/ columbia.htm.
39 See Blaskey, supra note 36, at 65; Swem, supra note 35, at 382; Holmes, supra note 38.
40 See Baker, supra note 35, at 22–23; John Friedl, Punishing Students for Non-Academic Misconduct, 26 J.C. & U.L. 701, 713 (2000); Rosenthal, supra note 35, at 1247–48. See generally Kors & Silverglate, supra note 5 (arguing that campus discipline systems administer justice in a biased fashion and without due process). Critics have called into question the ability of universities to prosecute and adjudicate allegations of offenses as serious as rape, and some have suggested that schools coddle criminals whereas others have charged that they run roughshod over the rights of the falsely accused. See Rosenthal, supra note 35, at 1248. This concern has led former Boston University President John Silber to conclude that colleges should avoid disciplining these crimes and instead report them to the police. See id. at 1249. The weakness of this argument is, as Rosenthal points out, that internal adjudication may provide victims of sexual assault a friendlier atmosphere than the criminal courts. See id. at 1247–48.
41 See Crime Awareness and Campus Security Act of 1990 � 204(a), 20 U.S.C. � 1092(f) (1)-(6) (1994) (requiring universities to develop policies to encourage prompt reporting of crimes to police and university officials); Higher Education Amendments of 1992 � 486, 20 U.S.C. �1092(f) (1) (F), (f) (7) (1994) (requiring universities to develop and implement policies against sexual assault and compile and report statistics on sexual assault); Baker, supra note 35, at 23; Rosenthal, supra note 35, at 1247.
42 See Rosenthal, supra note 35, at 1247.
43 See Baker, supra note 35, at 22–23; Rosenthal, supra note 35, at 1247.
44 See Baker, supra note 35, at 22–23; Rosenthal, supra note 35, at 1247.
45 See Baker, supra note 35, at 22–23; Rosenthal, supra note 35, at 1247.
46 See Baker, supra note 35, at 22–23; Rosenthal, supra note 35, at 1247. See also Richard C. Cahn, Sexual Harassment on Campus: Does the Accused Have Any Rights?, 11 Touro L. Rev. 579, 580 (1995) (noting that even groundless allegations of sexual misconduct, like those of rape, can irreversibly damage reputations and ruin careers).
47 294 F.2d 150, 158 (5th Cir. 1961).
48 See id. at 154–55. The students were not granted a hearing prior to their expulsion and the notice of expulsion mailed to them assigned no specific ground for expulsion. See id. at 151–52, 154. Moreover, the members of the State Board of Education who voted to expel the students assigned “somewhat varying and differing grounds for their decision.” See id. at 159. This “outrageous action” of the Alabama officials prompted the Fifth Circuit to cite what it termed the “eloquent comment” by Professor Warren A. Seavey in his article Dismissal of Students: Due Process, 70 Harv. L. Rev. 1406, 1407(1957): “It is shocking that the officials of a state educational institution, which can function properly only if our freedoms are preserved, should not understand the elementary principles of fair play. It is equally shocking to find that a court supports them in denying to a student the protection given to a pickpocket.” See id. at 158.
49 See Dixon, 294 F.2d. at 158. In dictum, the court went on to state its views on the nature of the notice and hearing required prior to expulsion: the notice should contain a statement of the specific charges and the grounds which, if proven, would justify expulsion. See id. The nature of the hearing, the court stated, should vary depending upon the circumstances of the particular case. See id. Because charges of misconduct depend upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses, hearings in these cases at best protect the rights of all involved if the administrative authorities are given an opportunity to hear both sides in considerable detail. See id. at 158–59. The Fifth Circuit was not suggesting that a full-dress judicial hearing was required, but noted that the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college. See id. at 159.
50 See Goss v. Lopez, 419 U.S. 565, 579–80 (1975).
51 See id. at 581. In a footnote, the Court indicated its approval of Dixon, explicitly referring to it as a “landmark decision.” See id. at 576 n.8.
52 See id. at 568.
53 See id. at 581. Explaining its holding in more detail, the Court commented that requiring effective notice and an informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. See id. at 583. The disciplinary administrator may then summon the accuser, permit cross-examination and allow the accused student to present his own witnesses, resulting in discretion that is more informed and a risk of error that is substantially reduced. See id.
54 See id. at 584.
55 See Rendell-Baker v. Kohn, 457 U.S. 830, 846 (1982); Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 86 (1978).
56 See Horowitz, 435 U.S. at 86.
57 See Rendell-Baker, 457 U.S. at 846. In an explanation of why private entities are not subject to a state action claim, the Court stated, “Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be.” NCAA v. Tarkanian, 488 U.S. 179, 191 (1988).
58 See Holert v. Univ. of Chi., 751 F. Supp. 1294, 1301 (N.D. Ill. 1990) (commenting that courts adopt a deferential standard regarding university discipline decisions because of a reluctance to interfere with the regulation of student conduct in a private university); Anderson v. Mass. Inst. of Tech., 1995 WL 813188, *1, *4 (Mass. Super. 1995) (noting that a court may only intervene in the student-university relationship when the student demonstrates that the university action was arbitrary and capricious); Psi Upsilon of Phila. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991) (noting that courts are generally more reluctant to interfere in the disciplinary proceedings of a private college than those of a public college); Schulman v. Franklin & Marshall Coll., 538 A.2d 49, 52 (Pa. Super. Ct. 1988) (indicating that because a college is a unique institution which, to the degree possible, must be self-governing, courts should not become involved in internal disciplinary procedures unless the process has been found to be biased, prejudicial or lacking in due process).
59 See Cloud v. Trustees of Boston Univ., 720 F.2d 721, 725 (1st Cir. 1983) (“We also examine the hearing to ensure that it was conducted with basic fairness.”); Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 244 (D. Vt. 1994) (“The College has agreed to provide students with 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.”); Schaer v. Brandeis Univ., 735 N.E.2d 373, 380 (Mass. 2000) (“In addition to reviewing the allegations of breach of contract, [w]e . . . examine the hearing to ensure that it was conducted with basic fairness.”); Coveney v. Pres. of Coll. of the Holy Cross, 445 N.E.2d 136, 138 (Mass. 1983) (“[A] private university, college, or school may not arbitrarily or capriciously dismiss a student.”); Ahlum v. Adm’rs of the Tulane Educ. Fund, 617 So. 2d 96, 98–99 (La. Ct. App. 1993) (“The disciplinary decisions of a private school may be reviewed for arbitrary and capricious action.”); Psi Upsilon of Phila., 591 A.2d at 760 (“[C]ourts should not interfere with internal procedure and discipline unless real prejudice, bias or denial of due process is present.”). See also Anderson, 1995 WL 813188, at *4–*5 (“A court may only intervene in the student-university relationship when the student demonstrates that the university’s action was arbitrary and capricious.”). The Anderson court provided a comprehensive list of circumstances that would render a school’s action arbitrary and capricious, including a failure to follow its own disciplinary rules and a failure to afford the student a hearing that was fundamentally fair. See id. at *4. Further, the court suggested that “at the very least” the student should be provided written notice of the charges against him; a written description of the evidence upon which the charges are based; the names of the witnesses the school intends to call at the hearing; an unbiased disciplinary committee or tribunal; an opportunity to be heard and present witnesses in his behalf; and the right to confront and controvert the evidence presented by the university. See id.
60 See Fellheimer, 869 F. Supp. at 244 (concluding that the College can breach its obligation to students only by deviating from its own procedures in such a way that the disciplinary action at issue is fundamentally unfair, arbitrary or capricious); Holert, 751 F. Supp. at 1301 (holding that the student was entitled only to those procedural safeguards the University agreed to provide); Tedeschi, 404 N.E.2d at 1306 (holding that when a university adopted a rule or guideline establishing the procedure to be followed in relation to a suspension or expulsion that procedure must be substantially observed).
61 See Schaer, 735 N.E.2d at 378, 381. The parties had stipulated to the existence of a contractual relationship. See id. at 378.
62 See id. at 376. The facts surrounding the Brandeis case are similar to those played out on college campuses nationwide. See Bernstein, supra note 31, at 1; Kranhold & Farrish, supra note 31, at A1. On March 26, 1996, a female student filed a report with the Brandeis student judicial system. See Schaer, 735 N.E.2d at 376. In the report, she stated that in the early hours of February 14, she spoke with Schaer on the telephone and that he then came to her dormitory room where they began kissing. See id. She alleged that she told Schaer that she “did not want to have sex,” but that when she later awoke from sleep she found Schaer having intercourse with her. See id.
63 See Schaer, 735 N.E.2d at 376.
64 See id.
65 See id. at 377.
66 See Schaer, 735 N.E.2d at 378–79. The Appeals Court characterized the violations as: (1) failure to make careful evaluation of the facts and of the credibility of persons reporting them as required by section 17 of the [contract]; (2) failure to make a record of the proceedings of the board, as required by section 19.4; (3) receipt of irrelevant and inflammatory evidence, in violation of section 19.13; (4) failure to apply ‘clear and convincing evidence standard prescribed by section 19.13 of the [contract]; and (5) failure to accord Schaer the process due under section 18.11 of the [contract]. See id. at 378–79.
67 See id. at 378–80.
68 See id. at 380.
69 See id.
70 See id.; see also Psi Upsilon of Phila., 591 A.2d at 760 (“[A Discipline] Board is not subject to strict rules of judicial procedure.”).
71 See Schaer, 735 N.E.2d at 380.
72 Id.
73 See id. at 381.
74 See id.
75 See id. at 379–80.
76 See Schaer, 735 N.E.2d at 379–80. Over the course of the five hour hearing, thirteen witnesses testified and the summary of their testimony consisted of only twelve lines! See id. at 384 (Ireland, J., dissenting).
77 See id. at 380.
78 See id. at 382 (Ireland, J., dissenting).
79 See id. at 382 (Ireland, J., dissenting).
80 See id. at 382–83 (Ireland, J., dissenting).
81 See Schaer, 735 N.E.2d at 383(Ireland, J., dissenting).
82 See Anderson, 1995 WL 813188, at *4–*5; Coveney, 445 N.E.2d at 138.
83 See Ahlum, 617 So. 2d at 98–99, 101.
84 Id.
85 Id.
86 See id. at 99–100, 101.
87 See id. at 98.
88 See Ahlum, 617 So. 2d at 98. This hearing would have been Sean Ahlum’s third hearing before the Joint Hearing Board. See id. at 97. At the first hearing the board unanimously found him in violation of rule III(A) (1). See id. Ahlum appealed this finding to the Appellate Committee who overturned the Joint Hearing Board’s decision and remanded it to the Hearing board because copies of the Louisiana criminal statute on “simple rape” had been placed in the record, prior to the hearing, without Ahlum’s knowledge. See id. The second hearing again resulted in a unanimous finding that Ahlum violated rule III(A) (1). See id. At the second hearing, the tape recorder malfunctioned and no recording of the hearing was made and no transcript of the proceeding was available for appellate review. See id.
89 See id. at 98.
90 See id.
91 See id. at 98–99.
92 See id. at 99.
93 See Ahlum, 617 So. 2d at 99.
94 See id.
95 See id. The court defined arbitrary as a “disregard of evidence or of the proper weight thereof” and capricious as a “conclusion made without substantial evidence or a conclusion contrary to substantial evidence.” See id.
96 See id. at 99.
97 See id. at 99, 100.
98 See Ahlum, 617 So. 2d at 99.
99 See id.
100 See A & B v. C. Coll. & D., 863 F. Supp. 156, 158 (S.D.N.Y. 1994); Holert, 751 F. Supp. at 1300–01.
101 See Fellheimer, 869 F. Supp. at 241.
102 Id.
103 See id. at 242.
104 See id.
105 See id. at 243. In a bizarre argument, Middlebury also urged the court to rule that the handbook does not create enforceable contractual obligations because: it was unilaterally developed by the College; its provisions were not bargained for by the plaintiff; and its broad informational nature is such that no rational trier of fact could conclude that the parties intended to enter into a contract on the terms contained in the handbook. See id. at 242–43.
106 See Fellheimer, 869 F. Supp. at 243 (citing Slaughter v. Brigham Young Univ., 514 F.2d 622, 626 (10th Cir. 1975)).
107 See Fellheimer, 869 F. Supp. at 243.
108 See Merrow v. Goldberg, 672 F. Supp. 766, 774 (D. Vt. 1987).
109 See Fellheimer, 869 F. Supp. at 243(citing Merrow, 672 F. Supp. at 774).
110 See Fellheimer, 869 F. Supp. at 242–44.
111 See id.
112 Id.
113 Id. at 243–44.
114 See Fellheimer, 869 F. Supp. at 244. The handbook states in part: “The following procedures are designed to promote fairness, and will be adhered to as faithfully as possible. If exceptional circumstances dictate variation from these procedures, the variation will not invalidate a decision unless it prevented a fair hearing or abrogated the rights of a student.” Id.
115 See Fellheimer, 869 F. Supp. at 244.
116 See id.
117 See id. at 244–46.
118 See id. at 244–45.
119 See id. at 244–45. As to the first claim, the court found that the handbook itself provides that the Dean of Students may serve in both roles and indeed may alone decide a case in which she has transmitted the charges. See id. at 244 n.1. As to the second claim, here again the handbook clearly indicates that “respect for persons and property” is expected and that violation of that provision may result in dismissal. See id. at 244. Although admitting that this broad language could encompass a wide variety of conduct, the court determined that it would be “very impractical for a college to spell out every specific offense which could lead to disciplinary action.” See id. at 245 n.2.
120 See Fellheimer, 869 F. Supp. at 244.
121 Id. at 245.
122 See id. at 245.
123 See id.
124 See id. at 246.
125 See Fellheimer, 869 F. Supp. at 246.
126 See 720 F.2d 721, 724–25 (1st Cir. 1983).
127 Id. at 723. Cloud allegedly engaged in the conduct while crawling on all fours under tables where the women were seated. Id.
128 Id. Cloud argued that his hearing should have been governed by the Law School Disciplinary Rules (LSDR) rather than the PSC because he was a member of the law school community. See id. at 724. The court expressly rejected this argument, noting that students are subjected both to the rules of Boston University and the regulations of the School of Law. See id.
129 Id. at 723. Among these protections, a student accused of misconduct is entitled to: (1) notice in writing of the alleged violation and the time and place of the hearing; (2) the right to be represented at the hearing by counsel; (3) the right to have the case decided by an impartial judicial body; (4) the right to confront and cross-examine any witness; and (5) the right to call witnesses and introduce evidence. See id.
130 Id.
131 See Cloud, 720 F.2d at 723.
132 Id.
133 Id. The PSC governing procedures also establish that the Judicial Committee, a three-member panel selected from the faculty, student body and administration, is the sole arbiter of the weight of the evidence, demeanor and credibility of witnesses, guilt or innocence of the student and the appropriateness of any sanctions imposed. See id.
134 Id. at 724.
135 Id.
136 Cloud, 720 F.2d at 724.
137 See id. at 724–25. The court explained that in Massachusetts, the standard of basic fairness was expressed implicitly in Coveney v. President & Trustees of the College of the Holy Cross, where the Supreme Judicial Court held that “if school officials act in good faith and on reasonable grounds . . . their decision to suspend or expel a student will not be subject to successful challenge in the courts.” See Coveney, 445 N.E.2d at 139.
138 See Cloud, 720 F.2d at 725.
139 See id.
140 See id.
141 See id. at 725.
142 See id.
143 See Cloud, 720 F.2d at 725.
144 See id.
145 See id.
146 See id.
147 See id.
148 Cloud, 720 F.2d at 725.
149 Id. Cloud advanced several other arguments that the court definitively rejected. See id. at 725. First he argued that the as the University’s counsel, the Hearing Examiner was biased, thus violating the contractual right to an “impartial judicial body.” See id. Here the court noted that the guarantee of impartiality pertained to the Judicial Committee, not the Hearing Examiner. See id. Second, Cloud objected to the University’s failure to produce employees whose testimony Cloud requested. See id. at 726. The court noted that the PSC does not guarantee subpoena powers and Cloud was provided the opportunity to present his own witnesses and cross-examine the University witnesses. See id.
150 Id. at 726.
151 See Ahlum, 617 So. 2d at 98–99; Schaer, 735 N.E.2d at 381; Anderson, 1995 WL 813188, at *4; Psi Upsilon of Phila., 591 A.2d at 760.
152 See Fellheimer, 869 F. Supp. at 246 (finding that the College’s deviation from the procedures it established did render the hearing fundamentally unfair); Coveney, 445 N.E.2d at 138–39 (noting that although a private school may not arbitrarily or capriciously dismiss a student, if school officials act in good faith and on reasonable grounds, their decision to expel a student will not be subject to successful challenge in court); Anderson, 1995 WL 813188, at *4 (concluding that a court may only intervene in the student-university relationship when, inter alia, the university failed to follow its own rules and did not afford the student a hearing which was fundamentally fair); Tedeschi, 404 N.E.2d at 1303, 1306.
153 See Schaer, 735 N.E.2d at 381 (commenting that a university is not required to adhere to the standards of due process guaranteed to criminal defendants or to abide by rules of evidence adopted by courts); Coveney, 445 N.E.2d at 140 (noting that because the college is a private institution, plaintiff had no constitutional right to a hearing or to have an attorney present); Psi Upsilon of Phila., 591 A.2d at 760 (pointing out that a private school is not subject to strict rules of judicial procedure).
154 See Baker, supra note 35, at 11; Beh, supra note 22, at 183; Berger & Berger, supra note 22, at 289; Blaskey, supra note 36, at 65; John Friedl, supra note 40, at 701; Edward J. Golden, Procedural Due Process for Students at Public Colleges and Universities, 11 J.C. & U.L. 337, 337 (1982); Groholski, supra note 17, at 739; Note, An Overview: The Private University and Due Process, supra note 22, at 795; Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 120; James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L.J. 2132, 2132 (1987); Douglas R. Richmond, Students’ Right to Counsel in University Disciplinary Proceedings, 15 J.C. & U.L. 289, 289 (1989); Rosenthal, supra note 35, at 1241; Marc H. Shook, Student Article, The Time is Now: Arguments for the Expansion of Rights for Private University Students in Academic Disciplinary Hearings, 24 Law & Psychol. Rev. 77, 77 (2000); Sinson, supra note 22, at 195; Swem, supra note 35, at 359; Charles Alan Wright, The Constitution on Campus, 22 Vand. L. Rev. 1027, 1027 (1969).
155 See Blaskey, supra note 36, at 65; Golden, supra note 154, at 337; Groholski, supra note 17, at 739; Picozzi, supra note 154, at 2132; Rosenthal, supra note 35, at 1241; Swem, supra note 35, at 359.
156 See Berger & Berger, supra note 22, at 289; Shook, supra note 154, at 77.
157 The commentators who focus on academic misconduct in private schools offer an analytic framework for examining the problems unique to private educational institutions. Those commentators focusing exclusively on misconduct in public schools provide a conceptual structure grounded in the Constitution’s Due Process Clause that forms the guidelines for a “fundamental fairness” argument in the private school context.
158 See Blaskey, supra note 36, at 82; Groholski, supra note 17, at 800; Richmond, supra note 154, at 289.
159 See Baker, supra note 35, at 21; Swem, supra note 35, at 377.
160 See Rosenthal, supra note 35, at 1276; Swem, supra note 35, at 377. The Fifth Amendment to the U.S. Constitution provides that “No person shall . . . be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
161 See Berger & Berger, supra note 22, at 291.
162 See id.
163 See id. The Fourteenth Amendment provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, �1. Because publicly funded colleges and universities have been determined to be agents of the state, their decisions qualify as “state action.” See Goss, 419 U.S. at 737 n.8; Dixon, 294 F.2d at 158. Several commentators have attempted to show that the disciplinary proceedings of a private university involve a degree of state action sufficient to trigger the application of the Fourteenth Amendment’s Due Process Clause, but the Supreme Court rejected the application of the “state action” principle to colleges and universities in Rendell-Baker v. Kohn, 457 U.S. 830, 846 (1982). See Note, An Overview: The Private University and Due Process, supra note 22, at 796–803; Note, Private Government on the Campus—Judicial Review of University Expulsions, supra note 35, at 1388–89; Sinson, supra note 22, at 215–17. For a thorough examination of the “state action” theory, as applied to private schools, see Note, An Overview: The Private University and Due Process, supra note 22, at 795–803.
164 See Berger & Berger, supra note 22, at 291.
165 See id. at 292–93.
166 See id.
167 See id. at 318–319; cf. discussion supra Part I.A–B. The Bergers argue that the student’s tuition payment supplies the consideration for his or her expectations. See Berger & Berger, supra note 22, at 319.
168 See Berger & Berger, supra note 22, at 331–32.
169 See id. at 322–24. As the Bergers point out, the typical college applicant experiences neither bargain nor equality in the exchange with the school and few of the terms of the agreement (“contract”) with the school are negotiable. See id. at 322. These factors, combined with the typical student’s youth only heighten the bargaining inequality of the two parties. See id. at 323. Consequently, the resulting arrangement, or contract, arises between decidedly unequal parties, contains a set of written terms fashioned by the stronger party, is formed without discussion of or attention to the written content, and is generally not meant to be discussed. See id. at 324.
170 See id. at 328. The Bergers note that courts, ultimately, must decide whether the terms or the contract are fair and reasonable in the circumstances. See id. Because the school has a duty of public service in educating its students, because the contract is adhesionary, and because the education which the contract promises is an important interest for the student, the court must insist that reasonable terms be adhered to, that unreasonable terms be stricken and that missing terms assuring a student’s fair treatment be supplied. See id.
171 See id. at 335.
172 See Berger & Berger, supra note 22, at 335.
173 See id.
174 See Baker, supra note 35, at 11; Blaskey, supra note 36, at 65; Golden, supra note 154, at 337; Groholski, supra note 17, at 739; Picozzi, supra note 154, at 2132; Rosenthal, supra note 35, at 1241; Swem, supra note 35, at 359.
175 See Baker, supra note 35, at 21.
176 See id. at 22–24.
177 See id. at 25–28.
178 976 F. Supp. 136 (N.D.N.Y. 1997).
179 See Baker, supra note 35, at 21.
180 See id. at 18–19.
181 See id. at 19.
182 See id.
183 See id.
184 Blanton v. State Univ. of N.Y., 489 F.2d 377, 385 (2d Cir. 1972) (quoting Charles Alan Wright, The Constitution on Campus, 22 Vand. L. Rev. 1027, 1076 (1969)).
185 See Baker, supra note 35, at 21.
186 See id. at 21. Judge Kahn clarified in a footnote that the Constitution did not entitle Donohue to cross-examine the complainant directly. See id. at 22. Baker points out the irony that the decision in Donohue, the first federal cross-examination ruling unfavorable to a public university, involved a charge of date rape during a time period remarkable for expansive developments in the rights of student victims in gender-based physical harassment. See id. at 22.
187 See id. at 22–24.
188 See id. at 21–22.
189 See id.
190 See Baker, supra note 35, at 23. As noted above, even when such evidence is available, physical evidence of intercourse may not be dispositive of guilt if consent is at issue. See id.
191 See id. at 22–23.
192 See id.
193 See id. at 23.
194 See Baker, supra note 35, at 30–31. For example, in Donohue, the accused student was may have been permitted to cross-examine his accuser indirectly. See id. at 20. Baker suggests that future courts could choose to distinguish Donohue on its facts (the length of the suspension and lack of a hearing record) or take the decision one step further and mandate direct cross-examination as a minimum constitutional right. See id. at 30.
195 See id. at 25–27.
196 See id. at 25.
197 See id. at 26.
198 See id. at 27.
199 See Baker, supra note 35, at 27.
200 See id. at 27–28.
201 See Berger & Berger, supra note 22, at 328; Seavey, supra note 48, at 1407; Wright, supra note 154, at 1060.
202 McNabb v. United States, 318 U.S. 332, 347 (1943).
203 See Wright, supra note 154, at 1060.
204 See Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 244 (D. Vt. 1994); Holert v. Univ. of Chi., 751 F. Supp. 1294, 1301(N.D. Ill. 1990); Ahlum v. Adm’rs of the Tulane Educ. Fund, 617 So. 2d 96, 98 (La. Ct. App. 1993); Schaer v. Brandeis Univ., 735 N.E.2d 373, 381(Mass. 2000); Coveney v. Pres. of Coll. of the Holy Cross, 445 N.E.2d 136, 139 (Mass. 1983); Schulman v. Franklin & Marshall Coll., 538 A.2d 49, 52 (Pa. Super Ct. 1988); Rosenthal, supra note 35, at 1245; Sinson, supra note 22, at 196–97; Swem, supra note 35, at 364–65.
205 See Fellheimer, 869 F. Supp. at 244; Holert, 751 F. Supp. at 1301; Ahlum, 617 So. 2d at 98; Schaer, 735 N.E.2d at 381.
206 See Rosenthal, supra note 35, at 1247.
207 See id. at 1247. See also, Schulman, 538 A.2d at 52. Here, the court offered some insight into the importance of safeguarding a school’s ability to ensure the safety of its student:
In this case, particularly with the necessary concern on college campuses as to student activities in the sexual area and with the widespread notoriety and publicity relating to date-rape and the opportunity for students to take advantage of one another, perhaps fostered by the proximity of students to each other in the mixed dorm communities . . . [i]t cannot be denied that college officials must protect the student body as well as assure that students charged with wrong-doing obtain fair treatment.
See id.
208 The complainant in a student-on-student sexual misconduct case undoubtedly has an interest that must be protected, but in these cases, school administrators are more likely to align the school’s interest with the victim’s interest. This was not always the case. See Bernstein, Years Later, Fordham Case Still Haunts Woman, supra note 31, at 1; Bernstein, Behind Some Fraternity Walls, Brothers in Crime, supra note 31, at 1.
209 See Groholski, supra note 17, at 753–55 (citing Herman v. Univ. of S.C., 457 F.2d 902, 903 (4th Cir. 1972); Note, Common Law Rights for Private University Students, supra note 22, at 129; Picozzi, supra note 154, at 2138–39.
210 See Groholski, supra note 17, at 742; Picozzi, supra note 154, at 2139.
211 See Groholski, supra note 17, at 742; Picozzi, supra note 154, at 2139.
212 See Groholski, supra note 17, at 742; Picozzi, supra note 154, at 2139.
213 See Groholski, supra note 17, at 742; Picozzi, supra note 154, at 2139. See also Roiphe, supra note 31, at 39–41. Roiphe details two instances in which a university student fabricated a date rape. See id. at 39. In one case, the female student reported that she had filed a complaint with the school administration (she had not), that a school official had told her to “let bygones be bygones” (he had not) and that the male student she accused of the rape complained to the administration. See id. at 39–40. As Roiphe correctly observes, the accusation of rape is a serious one and the male student accused in this case was in a terrible position in the community until the record was set straight. See id. at 41. “Accusations of rape stick, and in the twisted justice of the grapevine no one is considered innocent until proven guilty.” Id. at 41.
214 See Roiphe, supra note 31, at 41.
215 See Ahlum, 617 So. 2d at 98; Coveney, 445 N.E.2d at 140; Anderson, 1995 WL 813188, at *3; Psi Upsilon of Phila. 591 A.2d at 758.
216 See Berger & Berger, supra note 22, at 291; Robert B. McKay, The Student as Private Citizen, 45 Denv. U. L. Rev. 558, 560 (1968); Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 123–24; Wright, supra note 154, at 1035–36.
217 See Berger & Berger, supra note 22, at 291; Robert B. McKay, The Student as Private Citizen, 45 Denv. U. L. Rev. 558, 560 (1968); Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 123–24; Wright, supra note 154, at 1035–36.
218 See Berger & Berger, supra note 22, at 291; McKay, supra, note 217, at 560; Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 123–24; Wright, supra note 154, at 1035–36.
219 See Berger & Berger, supra note 22, at 291; McKay, supra note 217, at 560; Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 123–24; Wright, supra note 154, at 1035–36.
220 See Berger & Berger, supra note 22, at 291; McKay, supra note 217, at 560; Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 123–24; Wright, supra note 154, at 1035–36.
221 See Berger & Berger, supra note 22, at 291; McKay, supra note 217, at 560; Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 123–24; Wright, supra note 154, at 1035–36. As Curtis and Vivian Berger observe, “[i]f due process sets the minimum standard for public institutional fairness, the contractual (private) floor should sink no lower.” Berger & Berger, supra note 22, at 337.
222 See McKay, supra note 217, at 560.
223 See id.; Sinson, supra note 22, at 196; see also Edward N. Stoner, II, United Educators Insurance Risk Retention Group, Inc., Reviewing Your Discipline Policy: A Project Worth the Investment 1, 7 (2000).
224 See Berger & Berger, supra note 22, at 300; Note, Common Law Rights for Private University Students: Beyond the State Action Principle, supra note 22, at 1390.
225 See Kors & Silverglate, supra note 5, at 278. In fact, courts appear to be more willing to conduct a review of a private school’s expulsion of a student for misconduct. See id. As Kors and Silverglate observe, if colleges and universities remain stubbornly immune from notions of fairness that have long prevailed in other arenas, courts will be more likely to intervene in the affairs of the academy. See id.
226 See Berger & Berger, supra note 22, at 291.
227 See Kors & Silverglate, supra note 5, at 350; Lana A. Shavartsman, Schaer v. Brandeis University: Justice and Fair Play in a Private University Disciplinary Proceeding, 45 FEB B. B.J. 6, 7 (2001).
228 See Kors & Silverglate, supra note 5, at 350; Shavartsman, supra note 227, at 6, 7.
229 See Kors & Silverglate, supra note 5, at 350; Shavartsman, supra note 227, at 7. See also Stoner, supra note 223, at 11 (counseling schools to provide the bare minimum of “process” to satisfy a judge in order to avoid long legal entanglements).
230See Berger & Berger, supra note 22, at 322–25.
231See id.
232See Schaer, 735 N.E.2d at 382 (Ireland, J., dissenting); Berger & Berger, supra note 22, at 322–25.
233See Berger & Berger, supra note 22, at 322–25.
234See Baker, supra note 35, at 25–28; Berger & Berger, supra note 22, at 337–51; Swem, supra note 35, at 382; Wright, supra note 154, at 1060, 1064.
235 See Baker, supra note 35, at 22–24; Rosenthal, supra note 35, at 1246–48.
236 See Baker, supra note 35, at 26.
237 See id. See also Kors & Silverglate, supra note 5, at 270–71 (observing that the jurisprudence of procedural due process is in large measure concerned with identifying those procedures effective in discovering the truth).
238 See A & B v. C. Coll. & D., 863 F. Supp. 156, 158 (S.D.N.Y. 1994). In dictum, Judge Broderick recommended that in order to protect all of the interests at stake, and to minimize the risk of judicial involvement, schools should make the most effective possible efforts to implement procedures which will minimize the many risks inherent in sexual misconduct cases. See id. at 158. Among the risks he noted were failing to exercise discipline where harmful acts occur, encouraging or pursuing false or malicious charges, or permitting investigations or internal adjudications to turn into abusive events. See id. at 159. See generally Stoner, supra note 223 (detailing a number of disciplinary procedures and policies to improve a school’s discipline systems and drawing distinctions between criminal law and school discipline).
239 See Berger & Berger, supra note 22, at 351; Picozzi, supra note 154, at 2156–57; Swem, supra note 35, at 369–70; Wright, supra note 154, at 1071–72.
240 See Berger & Berger, supra note 22, at 346, 351; Swem, supra note 35, at 69–70; Wright, supra note 154, at 1071–72.
241 See Berger & Berger, supra note 22, at 346, 351; Swem, supra note 35, at 69–70; Wright, supra note 154, at 1071–72; see also Fellheimer, 869 F. Supp. at 246–47 (finding that the College’s failure to “state the nature of the charges with sufficient particularity to permit the accused party to meet the charges” as it had promised to do constituted a deviation from procedure that was fundamentally unfair); Ahlum, 617 So. 2d at 99 (finding that Tulane “took great pains” to inform the student of the charges against him which did not result in an unreasoned or thoughtless disciplinary decision).
242 See Berger & Berger, supra note 22, at 346, 351; Swem, supra note 35, at 69–70; Wright, supra note 154, at 1071–72.
243 See Picozzi, supra note 154, at 2157.
244 See Baker, supra note 35, at 27; Berger & Berger, supra note 22, at 362; Groholski, supra note 17, at 792; Picozzi, supra note 154, at 2151; Swem, supra note 35, at 379.
245 See Baker, supra note 35, at 27; Berger & Berger, supra note 22, at 362; Groholski, supra note 17, at 792; Picozzi, supra note 154, at 2151; Swem, supra note 35, at 379.
246 See Slaughter v. Brigham Young Univ., 514 F.2d 622, 625 (10th Cir. 1975); Ahlum, 617 So. 2d at 100–01; Anderson, 1995 WL 813188, at *4; Swem, supra note 35, at 379; Wright, supra note 154, at 1073.
247 See Schaer, 735 N.E.2d at 378; Berger & Berger, supra note 22, at 362; Groholski, supra note 17, at 792; Picozzi, supra note 154, at 2158; Swem, supra note 35, at 379–80.
248 Baker, supra note 35, at 27.
249 See Wright, supra note 154, at 1080.
250 See A & B, 863 F. Supp. at 159; Holert, 751 F. Supp. at 1301; Anderson, 1995 WL 813188, at *4; Psi Upsilon of Phila., 591 A.2d at 760–61; Swem, supra note 35, at 371–72; Wright, supra note 154, at 1080–81.
251 See Swem, supra note 35, at 371–72; Wright, supra note 154, at 1080–81.
252 See Baker, supra note 35, at 27–28; Berger & Berger, supra note 22, at 363; Picozzi, supra note 154, at 2145, 2158.
253 See Baker, supra note 35, at 27.
254 See id.
255 Picozzi, supra note 154, at 2158.
256 See Schaer, 735 N.E.2d at 379–80; Ahlum, 617 So. 2d at 99; Baker, supra note 35, at 25–26; Berger & Berger, supra note 22, at 344–45; Picozzi, supra note 154, at 2158; Swem, supra note 35, at 380. See also Stoner, supra note 223 (recommending that schools make a single verbatim audio tape recording of a disciplinary proceeding to aid hearing board members in their deliberations and to be used in the event of an appeal). Baker offers a number of excellent suggestions for the most effective use of audio tape including: (1) using reliable equipment; (2) following strict mechanical protocol at the hearing; (3) employing an appropriate number of microphones and a recording level gauge; and (4) having the hearing administrator interrupt the proceedings to identify each speaker. See Baker, supra note 35, at 25–26.
257 See Berger & Berger, supra note 22, at 344–45. A convincing argument can be made that an audiotape may produce a superior quality record because stenography cannot capture voice inflections, emphasis or tone quality. See Baker, supra note 35, at 25.
258 See Berger v. Berger, supra note 22, at 344–45.
259 See id.
260 See Kors & Silverglate, supra note 5, at 272; Baker, supra note 35, at 23–24; Berger & Berger, supra note 22, at 363; Picozzi, supra note 154, at 2158; Swem, supra note 35, at 376–77; Wright, supra note 154, at 1076.
261 See Kors & Silverglate, supra note 5, at 272; Baker, supra note 35, at 23–24; Berger & Berger, supra note 22, at 363; Picozzi, supra note 154, at 2158; Swem, supra note 35, at 376–77; Wright, supra note 154, at 1076.
262 See Kors & Silverglate, supra note 5, at 272; Baker, supra note 35, at 23–24; Berger & Berger, supra note 22, at 363; Picozzi, supra note 154, at 2158; Swem, supra note 35, at 376–77; Wright, supra note 154, at 1076.
263 See Baker, supra note 35, at 24; Swem, supra note 35, at 376–77; Wright, supra note 154, at 1076.
264 See Baker, supra note 35, at 23; Swem, supra note 35, at 377.
265 See Cloud, 720 F.2d at 725.
266 See Baker, supra note 35, at 26.
267 See A & B, 863 F. Supp. at 159; Anderson, 1995 WL 813188, at *5; Berger & Berger, supra note 22, at 352. The Bergers urge that the student’s right to be heard should comprehend more than the mere privilege of speaking to the hearing board himself or herself because witnesses with less obvious of a bias than that of the accused may be more persuasive. See id. at 352. They also may have relevant, even critical, knowledge not possessed by the parties. See id.
268 See Groholski, supra note 17, at 791; Richmond, supra note 154, at 290; Swem, supra note 35, at 373.
269 See Groholski, supra note 17, at 795–97; Picozzi, supra note 154, at 2150.
270 See Berger & Berger, supra note 22, at 343; Groholski, supra note 17, at 780; Richmond, supra note 154, at 298–300; Swem, supra note 35, at 373; Wright, supra note 154, at 1076.
271 See Berger & Berger, supra note 22, at 340.
272 See Richmond, supra note 154, at 298, 300; Swem, supra note 35, at 373.
273 Picozzi, supra note 154, at 2152–53; Richmond, supra note 154, at 300.
274 See Rosenthal, supra note 35, at 1276–77.
275 See Berger & Berger, supra note 22, at 341; Groholski, supra note 17, at 789.
276 See Berger & Berger, supra note 22, at 341; Groholski, supra note 17, at 789; Rosenthal, supra note 35, at 1276–77.
277 See Berger & Berger, supra note 22, at 341; Groholski, supra note 17, at 789; Rosenthal, supra note 35, at 1276–77.
278 Schaer v. Brandeis Univ., 735 N.E.2d 373, 383 (Mass. 2000) (Ireland, J., dissenting).