[*PG653]STUDENT MISCONDUCT AT PRIVATE COLLEGES AND UNIVERSITIES: A ROADMAP FOR “FUNDAMENTAL FAIRNESS” IN DISCIPLINARY PROCEEDINGS
Abstract: When called upon to review the disciplinary procedures of private colleges and universities, courts have struggled to find a legal theory upon which to base their reviews. Much of this struggle can be attributed to the fact that, because the relationship between a student and a university is unique, it is difficult to find an appropriate doctrinal category. This Note analyzes the methods by which courts have reviewed challenges to disciplinary proceedings in private colleges and universities. Specifically, it examines the approaches taken by courts that have reviewed private school disciplinary procedures, paying particular attention to what these courts have recommended to avoid arbitrary decisionmaking and to achieve “basic” or “fundamental” fairness.
On February 25, 2000, the Columbia University Senate, a legislative body comprised of faculty, students and administrators, voted unanimously to enact a new Sexual Misconduct Policy and Disciplinary Procedure and to create an “Office of Sexual Misconduct Prevention and Education.”1 The campaign for the new policy was spearheaded by Students Active for Ending Rape (SAFER), a campus group committed to “a non-adversarial approach” to student discipline and the eradication of “bureaucratic red tape” in the disciplinary process.2 [*PG654]The implementation of this new policy during the fall semester of the 2000–01 academic year touched off a firestorm of debate and renewed scrutiny of disciplinary systems in private colleges and universities across the nation.3
Critics of this policy argue that it suffers from a number of shortcomings.4 They maintain, for example, that the policy fails to afford a student accused of sexual misconduct such fundamental tenets of due process as the right to be present during testimony, to cross-examine witnesses, to receive advance notice of evidence, to have an attorney present during hearings, or to have a tape recording or a transcript of the proceedings.5 Moreover, this failure to provide for a tape recording or a transcript of the proceeding, critics argue, is likely to render any appeal illusory.6 They further contend that the policy improperly omits the assignment of a burden and fails to create any standard of proof.7 Critics also argue that the policy’s skeletal framework of due process is especially inadequate in situations in which the conduct in question could subject the accused student to criminal prosecution outside the university and where “conviction” within the university may result in substantial social stigma as well as serious punishment such as dismissal.8 Additionally, the policy specifies that “breaches of [*PG655]the confidentiality of the proceedings, or retaliation against any person bringing a complaint, will constitute separate violations of the Sexual Misconduct Policy.”9 The problem, opponents argue, is that this strict confidentiality provision may deter the accused student from approaching potential witnesses.10 As a result, the accused student, who is not entitled to receive advance notice of the evidence, but who has a strong interest in conducting his or her own investigation, is not afforded the opportunity to mount a successful defense.11
On the other hand, supporters of the policy argue that it furthers two important interests—namely, encouraging the reporting of sexual misconduct and preventing potential witness intimidation.12 Indeed, several of the policy’s provisions appear to protect victims of rape and other serious sexual offenses from the additional trauma of being forced to confront their attackers face-to-face or of being subjected to cross-examination in a disciplinary hearing.13 Proponents of the policy maintain that empirical evidence indicates that to avoid this trauma, victims often elect not to report attacks.14 In fact, the policy incorporates these concerns, recognizing that the reported incidents of campus sexual assaults likely under-represent the number of actual incidents and eliminating the former procedural requirement that both parties be present at the hearing at all times.15
In the face of ongoing public criticism over its policy, the Columbia administration has staunchly defended the policy’s provisions insisting that the imposition of every criminal law due process requirement is “not necessary to ensure a fair and effective [disciplinary] process.”16 In addition, the administration maintains that the policy [*PG656]affords accused students the basic due process standards required by the University.17 Columbia is correct—unlike public schools, private colleges and universities are not bound by the due process provisions of the Constitution; thus, they are permitted to establish and implement their own disciplinary procedures.18 Historically, courts have been reluctant to interfere in the discipline decisions of private colleges and universities and generally have required only that private schools substantially observe the rules or guidelines they have adopted.19
When called upon to review the disciplinary procedures of private colleges and universities, courts have struggled to find a legal [*PG657]theory upon which to base their reviews.20 Much of this struggle can be attributed to the fact that, because the relationship between a student and a university is unique, it is difficult to find an appropriate doctrinal category.21 Like courts, commentators also continue to search for a doctrine that will provide an appropriate standard to guide the judicial review of disciplinary procedures in private colleges and universities.22
Although several different theories have been suggested, including tort law, association law, and in loco parentis, courts most often have employed contract law principles when reviewing university disciplinary procedures.23 Some courts have applied contract law rather rigidly, whereas others, recognizing the inherent difficulties created by treating the student-university relationship as a strictly commercial arrangement, have adopted a “relaxed” contract approach.24 Courts [*PG658]applying a relaxed or quasi-contract approach have articulated that private schools should incorporate a requirement of “fundamental” or “basic” fairness in disciplinary proceedings.25 The particular parameters of “fundamental” or “basic” fairness are difficult to discern, but a careful analysis of the decisions points to several vital elements, including a general requirement that the disciplinary procedures be free from bias and prejudice.26
This Note analyzes the methods by which courts have reviewed challenges to disciplinary proceedings in private colleges and universities. Part I.A outlines the challenges presented by cases involving student-on-student sexual misconduct—arguably the most difficult cases a school faces.27 Part I.B examines the approaches taken by courts that have reviewed private school disciplinary procedures, paying particular attention to what these courts have recommended to avoid arbitrary decisionmaking and to achieve “basic” or “fundamental” fairness.28 Part I.C discusses the approaches of two commentators.29 Finally, Part II recommends that private colleges and universities write a disciplinary policy that enables them to balance the interests of both the students and the school and further proposes that courts hold private schools to a more rigorous standard of procedural due process in their disciplinary proceedings.30
In the 1990s, student-on-student sexual misconduct and the disciplinary responses to this behavior by colleges and universities emerged as a topic of great interest in the popular press.31 In re[*PG659]sponse to this heightened awareness regarding campus sexual misconduct, college and university administrators were under increased pressure from student groups to structure disciplinary procedures that were “victim-friendly.”32 As schools responded to these demands and attempted to alleviate the stress inflicted on testifying rape and sexual assault victims, a growing counter-movement alleged that campus disciplinary systems had become strongholds of political correctness.33 This group further charged that the rights of students accused [*PG660]of sexual misconduct are routinely trampled in campus Star Chambers.34 Finally, schools have a legitimate and compelling interest in protecting their public image, guarding against negative publicity, preserving order on campus, and promoting the school’s institutional values.35
The highly politicized tension between these competing movements offers some insight into the difficulty schools face in investigating and adjudicating student-on-student sexual misconduct cases.36 College administrators are faced with mounting pressure from both sides.37 Victims demand swift action and private hearings in which they do not have to confront or face the accused.38 From the other side, colleges face demands for procedures best designed to protect the rights of accused students and ascertain the truth, including the right to confront and cross-examine the accuser and other witnesses.39 Because these interests directly conflict with one another, schools are forced to assume the neutral role of referee and design a disciplinary [*PG661]system that enables them to investigate and adjudicate these complaints fairly and efficiently.40
In addition to the campus political pressure that can influence the contours of a school’s disciplinary system, student-on-student sexual misconduct cases are difficult from an evidentiary perspective.41 In cases of student-on-student sexual misconduct, the fact of sexual contact is often not in dispute and consent is the principal—and perhaps only—issue.42 Moreover, these incidents typically occur in dormitory rooms, and third-party eyewitnesses are rare.43 Because alcohol is often involved and consensual foreplay typically precedes an acquaintance rape, physical evidence of an assault is often unavailable.44 Even the presence of physical evidence of intercourse may not be dispositive of misconduct if consent is at issue.45 Thus, such disciplinary hearings are susceptible to being reduced to a “he said/she said” credibility contest.46
A public school student’s right to procedural due process in disciplinary matters was first affirmed by the United States Court of Ap[*PG662]peals for the Fifth Circuit in 1961 in Dixon v. Alabama State Board of Education.47 In Dixon, Alabama State College attempted to expel six students on grounds of misconduct, without showing the students detailed charges or any of the evidence against them.48 The Fifth Circuit held that the Due Process Clause of the Fourteenth Amendment requires notice and some opportunity for hearing before a student at a public university is expelled for misconduct.49
Fourteen years later, the United States Supreme Court provided more precise contours of Dixon.50 In 1975, in Goss v. Lopez, the Supreme Court held that even students facing a temporary suspension must be afforded notice of the charges against them and an opportunity to be heard.51 In Goss, nine Columbus, Ohio high schools students alleged that they had been suspended for up to ten days without a hearing, in violation of the procedural due process component of the Fourteenth Amendment.52 Noting that the Due Process Clause forbids arbitrary deprivations of liberty, the Supreme Court held that a student facing suspension of ten days or less must be given oral or written notice of the charges against him, an explanation of the evidence against him and an opportunity to present his side of the [*PG663]story.53 Expressly confining its holding to short suspensions (those not exceeding ten days) the Court, in dictum, noted that longer suspensions or expulsions might require more formal procedures.54
The Supreme Court further refined its academic due process jurisprudence in subsequent cases by recognizing two important distinctions—that between academic and disciplinary matters and that between public and private universities.55 In 1978, in Board of Curators of the University of Missouri v. Horowitz, the Court made it clear that it would grant greater deference to public schools in decisionmaking in academic, as opposed to disciplinary, dismissals and, indeed, would require more stringent procedural requirements in dismissals based upon purely disciplinary matters.56 Furthermore, in 1982, in Rendell-Baker v. Kohn, the Court held that, as a general matter, students attending private universities do not possess the same due process rights constitutionally guaranteed to students attending public schools.57 Accordingly, courts have been more reluctant to review the disciplinary decisions of private schools and have maintained a deferential posture toward private school decisionmaking, particularly in internal disciplinary affairs.58 In the absence of constitutional protections, [*PG664]courts generally have required that private school disciplinary procedures adhere to a “fundamental” or “basic” fairness standard and not be arbitrary or capricious.59 More precisely, state and federal courts have often held that a private school’s disciplinary decisions are fundamentally fair if they comport with the rules and procedures that the school itself has promulgated.60
In 2000, in Schaer v. Brandeis University, the Supreme Judicial Court of Massachusetts (“SJC”) held that in disciplining students, a university should follow its own rules and that a failure to do so may [*PG665]constitute a breach of contract.61 In this case, David Arlen Schaer, a student at Brandeis University, filed a complaint against the school seeking injunctive relief and compensatory damages after the Board on Student Conduct suspended him for four months for engaging in “unwanted sexual activity” and creating a “hostile environment.”62 After the suspension, the University Appeals Board on Student Conduct denied Schaer’s request for a new hearing.63 Three weeks later, Schaer filed a complaint in the Massachusetts Superior Court, alleging that in unfairly disciplining him, Brandeis had not substantially conformed to its disciplinary process and, therefore, was in breach of contract.64 The Superior Court denied Schaer’s request for an injunction and granted Brandeis’ motion to dismiss the complaint for failure to state a claim upon which relief could be granted.65 On appeal, the Massachusetts Appeals Court reversed the Superior Court in part, concluding that Brandeis “did not substantially conform its disciplinary process” to its own procedures as outlined in the “Rights and Responsibilities” section of its student handbook, which serves as a contract between the student and the school.66
Reviewing the case, the SJC considered Schaer’s allegations and determined that he had not, in fact, stated a claim upon which relief could be granted.67 The court did not, however, end its analysis there; it went on to examine the hearing to ensure that it had been conducted with “basic fairness.”68 Schaer argued that the proceeding was [*PG666]unfair because the testimony of four witnesses was improperly admitted at the hearing.69 The majority expressly rejected this argument, noting that a university discipline board is not required to follow the same rules of evidence employed in a court proceeding.70 Further distinguishing a university disciplinary proceeding from a court of law, the court explained that a university “may choose to admit all statements by every witness or it may choose to exclude some evidence.”71 Adhering to the well-established principle that courts are “chary about interfering” with the disciplinary decisions made by private colleges and universities, the court continued that “it is not the business of lawyers and judges to tell universities what statements they may consider and what statements they must reject.”72 Further, the court noted that a university must have broad discretion in determining appropriate sanctions for violations of its policies.73 Finally, the court stated that a university is not required to adhere to the standards of due process guaranteed to criminal defendants or to abide by the rules of evidence adopted by courts.74
Although it rejected Schaer’s breach of contract claim and found that Schaer was not denied “basic fairness,” the majority, in dictum, suggested several procedural safeguards that schools might adopt to ensure that disciplinary proceedings are conducted with basic fairness.75 For example, in addressing Schaer’s complaint that the record of the hearing was “insufficient,” the court indicated that because the applicable provision in the “Rights and Responsibilities” section of the student handbook did not require that the testimony of each individual witness be summarized, or that the record be any minimum length, Brandeis was in compliance with this provision.76 The court commented, however, that the report was extremely brief and suggested that the better practice would have been to produce a more complete report.77
[*PG667] In a well-reasoned and powerful dissent, Justice Roderick L. Ireland faulted the majority for its failure to analyze the provisions in the “Rights and Responsibilities” section of the student handbook in a manner consistent with the standard principles of contract interpretation.78 More specifically, because Brandeis issued the handbook unilaterally and students had no meaningful opportunity to negotiate the terms therein, the ambiguities should be construed against the school.79 Justice Ireland next recognized the unique problem faced by private colleges and universities in balancing the interests of student victims of sexual assault and students accused of sexual assault.80 Nonetheless, Justice Ireland concluded that in a hearing on a serious disciplinary matter there is too much at stake for a university to fail to follow the rules it has itself articulated.81
Other state courts have adopted a substantially similar approach.82 In 1993, in Ahlum v. Administrators of Tulane Educational Fund, the Court of Appeals of Louisiana held that the disciplinary decision of a private university could be reviewed only for arbitrary and capricious action, and that neither the university’s disciplinary procedures nor the evidence it relied on in this case were sufficiently deficient to render the university’s decision arbitrary and capricious.83 In Ahlum, Tulane University’s Joint Hearing Board and Appellate Committee found that a student, Sean Ahlum, violated Tulane’s Student Conduct Rule III(A) (1), which prohibits a student from “[c]ausing harm or reasonable apprehension of physical harm including sexual assault.”84 Ahlum filed for relief in Civil District Court, seeking to enjoin the University from imposing a suspension on the grounds that the proceedings were unfairly conducted.85 In particular, Ahlum argued that he was denied legal counsel and forced to cross-examine witnesses on his own during the hearing; that the University employed an experienced prosecutor to present its case and cross-examine witnesses; and that his right to an appeal was effectively eliminated.86 The trial court granted a preliminary injunction and [*PG668]ordered a new hearing to reconsider the charges.87 The court further ordered that a written record of the proceedings be made.88 Tulane appealed the judgment and asserted, inter alia, that the trial court was without the power to enjoin a private school from implementing an internal disciplinary decision.89
In reaching its decision, the Court of Appeals for Louisiana first noted that a private institution is “entitled to a very strong but rebuttable presumption that its internal administrative actions are taken in good faith” and has the power to “create, administer and implement its own rules and procedures concerning . . . the conduct of its students.”90 Although the court acknowledged that the role of the judiciary is not to substitute its own judgment for that of a private school on the appropriate standards of student conduct or the appropriate penalty for a breach of those standards, it nevertheless conceded that under some circumstances a court may review a private school’s disciplinary decisions.91 Like the court in Fellheimer v. Middlebury College (discussed below), the Ahlum court specifically commented that its adherence to a policy of judicial restraint in this arena does not suggest that a private institution can maintain egregious policies or that a school’s power is otherwise absolute.92 In a clear articulation of this position, the court announced that “due process safeguards in private schools cannot be cavalierly ignored or disregarded.”93 The court concluded, moreover, that a private school’s disciplinary decisions could be reviewed for arbitrary and capricious action.94
[*PG669] After providing definitions of “arbitrary” and “capricious,” the court turned to the facts of the case.95 The court found that Tulane had an “intricate system of hearings” at which Ahlum had an opportunity to present his version of the facts and to confront the witnesses against him.96 Further, Tulane took great pains to inform Ahlum of the charges against him and allowed him an opportunity to present his case in what the court termed a “non-adversarial” forum.97 The court thus held that after two separate hearings and two appeals it could not reasonably conclude that Tulane reached an unreasoned or thoughtless decision.98 In fact, the court was impressed by Tulane’s procedural safeguards and commented that the process afforded to Ahlum may have exceeded the due process required in public schools as envisioned by the United States Supreme Court.99
Like the state courts, federal courts have similarly held private schools to a “basic” or “fundamental” fairness standard.100 In 1994, in Fellheimer v. Middlebury College, for example, the United States District Court for the District of Vermont held that Middlebury College was contractually bound to provide students with the procedural safeguards it promised in its publications.101 Ethan Fellheimer, a student who had been suspended for one year after the College found him “not guilty of rape,” but guilty of “disrespect for persons, specifically for engaging in inappropriate sexual activity” with a female student, brought a breach of contract claim against the College.102 In particular, Fellheimer alleged that his relationship with the College was a contractual one, the terms of which were enumerated in the Middlebury College Handbook.103 According to Fellheimer, these terms included the College’s promise to provide students accused of disciplinary violations procedural protections equivalent to those that are [*PG670]required under the United States Constitution.104 Conversely, the College argued that the unique relationship between a college and a student, especially with respect to disciplinary proceedings, precludes the rigid application of contract law.105 In support of its argument, the College relied on Slaughter v. Brigham Young University—a Tenth Circuit case, holding that although some elements of the law of contracts should be used in the analysis of the relationship between a student and a university, this requirement does not mean that contract law must be rigidly applied in all its aspects.106
The Fellheimer court concluded that there was no legal bar to the plaintiff’s breach of contract claim and that the College was contractually bound to provide students with the procedural safeguards that it promised.107 In making its determination, the court looked to an earlier Vermont case, Merrow v. Goldberg,108 which found that the relationship between a student and a college is contractual in nature and thus a college has an obligation to conduct its hearings in a manner consistent with the terms of its handbook.109
The Fellheimer court then examined exactly what was promised in the handbook to determine whether the College breached its obligations to the plaintiff.110 As a threshold matter, the court referenced the language of the handbook and rejected Fellheimer’s contention that the College promised to provide procedural protections equivalent to those required under the Constitution.111 On the contrary, as the court noted, the handbook explicitly states that a student’s due process rights “cannot be coextensive with or identical to the rights afforded in a civil or criminal legal proceeding.”112 The handbook does, however, provide that the procedures are designed to “assure fundamental fairness, and to protect students from arbitrary or capri[*PG671]cious disciplinary actions.”113 Additionally, as the court pointed out, the provisions of the handbook left the College considerable flexibility with respect to the specific procedures it could use in a particular hearing, effectively creating an “escape route” to prevent the requirement of scrupulous adherence to stated procedures.114 The existence of this escape provision did not, however, lead the court to the conclusion that the College would be free to administer disciplinary proceedings in any manner it desired.115 Instead, the court pointed out that because the College had agreed to provide students with proceedings that conform to a standard of “fundamental fairness” and to protect them from arbitrary and capricious disciplinary action, a deviation from its own procedures could result in a breach of this obligation.116
Finally, the court in Fellheimer examined whether the College actually breached its obligation to Fellheimer.117 The plaintiff alleged three claims: (1) that the Dean’s participation in the case as both “prosecutor” and “judge” made the proceeding fundamentally unfair; (2) that the charge of “disrespect of persons” is impermissibly vague; and (3) that the notice Fellheimer received was insufficient because he was not informed that “disrespect of persons” was a separate and distinct charge from “rape” or “sexual assault.”118 Of these three claims, the court summarily dismissed the first two based upon a plain language reading of the handbook’s provisions.119 The court found the third claim more troubling.120 The language of the handbook provided that when charges are brought against a student, the Col[*PG672]lege shall “state the nature of the charges with sufficient particularity to permit the accused party to meet the charges.”121 Based upon undisputed facts, Fellheimer received a letter from the Dean’s office informing him that he was being charged with rape—none of the subsequent correspondence provided any notice that there were two charges pending rather than just one.122 As a result, Fellheimer was prepared to defend himself only against the rape charge, which he did successfully.123 He was not told that he was being charged with a second offense, and thus, was unable to defend against that charge.124 Such a deviation from the procedures established by the College, according to the court, made the hearing fundamentally unfair.125
Similarly, in 1983, in Cloud v. Trustees of Boston University, the United States Court of Appeals for the First Circuit held that Boston University’s disciplinary hearing in the case of a student charged with misconduct was conducted with basic fairness and did not violate the student’s contractual rights.126 In this case, Leevonn Cloud, a third-year law student, was charged with four separate incidents of serious misconduct for peeping under women’s skirts in the university library.127 The University conducted a disciplinary hearing in accordance with the Provisional Student Code (“PSC”), a copy of which was sent to Cloud along with a statement of the charges.128 The PSC, a comprehensive set of guidelines and regulations, affords students a number of procedural rights and “protections of due process.”129 The PSC also outlines the procedures governing the actual disciplinary hearing.130 Notably, these governing procedures provide that confor[*PG673]mity to the rules of procedure employed in a judicial proceeding is not required.131 Similarly, the procedures provide that the rules of evidence do not govern the hearing.132 Instead, the PSC allows the Hearing Examiner, a licensed attorney, the discretion to make protective rulings to exclude unreliable or prejudicial evidence.133
After a twenty hour hearing in which Cloud, who was represented by counsel, testified on his own behalf and presented nine witnesses (the University presented six witnesses), the Judicial Committee found him guilty of all four charges and expelled him from the University.134 Cloud unsuccessfully appealed the decision to the President of Boston University and subsequently brought a diversity action in United States District Court for the District of Massachusetts, in which he alleged violations of his contractual rights due to the improper conduct of the hearing.135 The court granted Boston University’s motion for summary judgment and Cloud filed an appeal.136
On appeal, the First Circuit examined the disciplinary hearing and reviewed the procedures to ensure that the hearing was conducted with basic fairness.137 In support of his claim, Cloud argued that the technical rules of procedure and evidence should have governed the proceeding and that the Hearing Examiner’s selective utilization of the rules to resolve procedural questions during the hearing was fundamentally unfair.138 Cloud also maintained that the hearing was unfair because the Hearing Examiner issued a limiting instruction that allowed the introduction of the transcript from Cloud’s 1970 rape trial in a Maryland court. Furthermore, Cloud alleged that because one of the University’s witnesses was allowed to testify without being confronted by Cloud, the hearing was in violation of the PSC’s [*PG674]guarantee of the “right to confront and cross examine any witness.”139 Finally, Cloud argued that the transcript was unduly prejudicial and inflammatory140 and that the anonymous testimony gave the Judicial Committee the wrong impression that Cloud was a threat to the witness.141
The court considered each of Cloud’s objections individually and concluded that none of them rendered the hearing unfair.142 In rejecting Cloud’s charge that the Hearing Examiner unfairly applied the rules of evidence and procedure, the court endorsed the Hearing Examiner’s decision to refer to court-established evidentiary and procedural rules in making his own decisions.143 The court concluded, however, that although reference to the court’s technical rules is desirable, it need not trigger full application of those rules.144 In the court’s view, such a requirement would discourage references of this nature by making them a straitjacket for the university.145 More specifically, the court found that any prejudice or stigma caused by the use of the transcript from Cloud’s trial was outweighed by the probative value such evidence has on the issue of sanctions and in judging the credibility of witnesses.146 In addition, the court reasoned that Cloud’s right to confront witnesses was not abrogated by the Hearing Examiner’s decision to shield one witness from his view.147 According to the court, Cloud was given the opportunity to cross-examine and his attorney and the Judicial Committee were permitted to view the witness.148 Moreover, the court found that the Hearing Examiner’s decision to allow a nervous and frightened witness to testify out of Cloud’s sight was a reasonable exercise of his discretion and did not render the hearing unfair or violate any of Cloud’s rights.149 [*PG675]Therefore, after considering and rejecting each of Cloud’s challenges, the court held that the hearing was conducted with basic fairness.150
In summary of the above, although courts have been reluctant to interfere in the disciplinary procedures of private colleges and universities and more reluctant to spell out the precise contours of a private school’s obligation to its students, reviewing state and federal courts have nevertheless established a minimum standard with which private school disciplinary proceedings should comply.151 The language employed has varied, but most courts require that private schools comply with their own published procedures and regulations and act reasonably.152 Few courts have been willing to require that private schools afford students the panoply of procedural protections provided to criminal defendants or even public university students.153
Whereas courts have consistently argued that private colleges and universities should be afforded wide latitude to develop and implement their student disciplinary policies and procedures, commentators have long argued for increased procedural safeguards.154 Most [*PG676]existing literature focuses on the procedural due process safeguards guaranteed by the Constitution for students in public colleges and universities,155 while the few articles that have examined procedural due process in the private school context have focused exclusively on academic misconduct.156 The arguments offered by these authors in the public school context, nevertheless, provide useful analogies to the difficult problems presented by private school disciplinary procedures for student-on-student sexual misconduct.157 Although at first glance these approaches seem ill-fitting, they actually offer useful insights by analyzing two significant concepts: (1) the unique problems presented in a private school setting; and (2) the due process safeguards constitutionally required of public schools.
Commentators have discussed a number of specific procedural due process rights: several have argued that a student accused of misconduct should be provided a right to counsel.158 Some have supported a right to cross-examine witnesses.159 Others have urged that students should have a Fifth Amendment-styled right to remain silent during a hearing.160
In their article Academic Discipline: A Guide to Fair Process for the University Student, Columbia University Law Professors Curtis and Vivian Berger argue that a registered student has a legally protected interest in his or her college education, and that the level of procedural protection should not decrease because the student attends a [*PG677]private rather than a public school.161 Although the Bergers focus their analysis on academic wrong doing—for example, plagiarism, cheating and the falsification of transcripts and resumes—much of their discussion can also be applied to an analysis of non-academic issues, such as those of student-on-student sexual misconduct.162 The Bergers argue that rather than attempting to ground a private school student’s right to procedural protection in an expanded view of “state action,” a more prudent method of analysis would be to employ contract law.163 According to the Bergers, contract law can provide a student with as much due process as a public school student receives under the Constitution—and in some instances even more.164 The Bergers offer a comprehensive examination of the manner in which a contractual relationship between a student and a private institution is formed and maintained.165 They also discuss the role of an implied covenant of good faith and fair dealing in the contract-based analysis and the importance of the student’s reasonable expectations.166
According to the Bergers, the essence of the contractual relationship between the student and the school is in their mutual understandings and reasonable expectations—the student expects to be treated fairly and the school expects “good citizenship,” including compliance with the prescribed set of rules.167 This is consistent with the courts, which have imposed a “good faith” duty upon private schools, meaning that, at a minimum, the schools must follow the [*PG678]rules they have published.168 The Bergers argue that the educational “contract” between the school and the student is essentially a contract of adhesion, a “take-it-or-leave-it proposition” under which the only alternative to complete adherence is outright rejection.169 Consequently, because the student and the school do not have equal bargaining power, the Bergers argue that the school must treat the student fairly, and they urge courts to carefully scrutinize contracts when asked to review a discipline decision.170
Using a number of cases from both the public and private school realms, the Bergers conclude that in order for a school’s disciplinary procedure to be exercised “fairly” and in “good faith” it must satisfy two tests.171 First, they argue, a school must establish “just cause” by a preponderance of the evidence, which suggests that the school carries the burden of proving it is more likely than not that an offense has occurred.172 Second, a school must create a process that gives students accused of misconduct a fair opportunity to contest the charges, which includes, in serious cases, a hearing before an impartial panel.173
Although the Bergers focus their analysis on the contractual nature of the relationship between a student and a private school, other commentators have examined the precise contours of due process required in public school settings.174 In his article Cross-Examination of Witnesses in College Student Disciplinary Hearings: A New York Case Rekin[*PG679]dles an Old Controversy, Thomas Baker compares and contrasts federal court decisions in the wake of disciplinary suspensions by public universities that were challenged on the grounds that the schools declined to afford the accused students an opportunity to cross-examine adverse witnesses.175 Baker concentrates particularly on the importance of providing a student accused of misconduct the opportunity to cross-examine adverse witnesses.176 He also advocates preserving a thorough and complete record of disciplinary hearings.177 Although Baker focuses exclusively on disciplinary procedures in public schools, his argument is equally applicable to private schools, as the procedures he advocates would ensure “fundamental fairness” and would therefore be more likely to protect private schools from challenges to their disciplinary decisions.
In conducting his analysis, Baker focuses on Donohue v. Baker.178 In 1997, in Donohue, the United States District Court for the Northern District of New York held that the United States Constitution entitled a student facing expulsion from a public school the right to cross-examine his accuser at the disciplinary hearing.179 Donohue, a male student at State University of New York (SUNY)-Cobleskill, a public university, was accused of raping a female student on campus.180 After the University conducted a hearing at which both the female student and Donohue testified, the hearing panel found him guilty of violating the student conduct code, and the university president suspended him for two years.181 Donohue filed suit in federal court alleging, inter alia, that the University violated his rights by not permitting him to cross-examine witnesses at the hearing.182 The court, through Judge Kahn, noted that the opportunity to cross-examine witnesses is not an essential requirement of due process.183 Judge Kahn, however, also noted the dictum in a Second Circuit decision184 that cross-examination might be necessary in contested expulsion hearings [*PG680]when the outcome of the hearing hinged upon witness credibility.185 The court found that in this case, “the disciplinary hearing became a test of credibility of the [respondent’s] testimony versus the testimony of [the complainant]” and that the Constitution obliged SUNY officials to afford Donohue some sort of opportunity to pose questions to his accuser before the University imposed a two-year suspension.186
Baker uses this case as a springboard for his discussion of the administrative dilemma that university officials face in resolving charges based upon student-on-student sexual misconduct.187 Baker argues that sexual misconduct cases, in particular, cause university administrators a number of problems.188 First, these cases ordinarily involve disputed allegations and ultimately depend upon witness credibility.189 This problem is magnified, Baker argues, by the fact that in many instances third-party eyewitnesses are rare, consensual foreplay typically precedes a date rape and, moreover, physical evidence of assault is often not available.190 The second administrative problem presented in these cases, Baker contends, is that the school must assume the neutral role of referee because the interests of the student complainant and the student accused directly conflict with one another.191 This tension, Baker argues, presents colleges with no small challenge in designing an effective complaint resolution process.192 Finally, Baker argues that due to the highly personal nature of a rape charge and the emotional toll it exacts on the victim, the procedural safeguard that best protects the interests of the accused—namely, cross-examination—is most likely to maximize the victim’s ordeal.193 Baker concludes that because the federal circuits are split on the issue [*PG681]of what, if any, cross-examination hearing rights are due a student facing expulsion from a public university, the precise contours of a student’s procedural right to cross-examine his or her accuser have yet to be clarified.194
Baker next maintains that judges and schools must consider the competing interests of the students involved in these cases and would be well-served to develop a complete hearing record to protect themselves in the event of post-hearing appeals or litigation.195 He offers a number of suggestions for how such a record may be preserved and concludes that audio tape recordings are both cost-effective and high quality.196 Finally, Baker argues that a college’s administration must begin its fact-finding duties well before the date of a disciplinary hearing and should interview the parties, identify any third party witnesses and collect statements in anticipation of a contested proceeding.197 Most importantly, Baker contends that hearing board members should strive to identify important factual disputes as the evidence is submitted, remain neutral as the evidence is presented and deliberate in good faith, resting their decisions solely on the evidence presented at the hearing.198 In conclusion, Baker notes that if the right to due process means anything, it means that the outcome of the hearing should not be predetermined and that hearing board members should consider the possibility that an erroneous charge may have been brought against the accused student.199 Ultimately, however, Baker does not suggest that colleges and universities adopt any or all of these procedures and, in fact, merely puts the cards out on the table for consideration. Like Curtis and Vivian Berger, Baker advocates that schools afford students accused of serious misconduct more procedural protection, thus better protecting themselves in the event of a lawsuit.200 On balance, commentators have been more willing to urge schools to adopt greater procedural protections and have encouraged [*PG682]reviewing courts to hold private schools to a higher standard of fundamental fairness.201
“The history of liberty,” Justice Frankfurter wrote, “has largely been the history of observance of procedural safeguards,” for without procedural protection, substantive protections would be virtually useless.202 Private schools have an obligation to guarantee their students charged with student-on-student sexual misconduct procedural safeguards that are most likely to ensure that disciplinary proceedings are fair and will lead to a reliable determination of the issues.203 Two central principles shape the relationship between a student accused of campus sexual misconduct and the private school that is charged with investigating the claim and administering discipline if a violation is found. First, as courts and commentators agree, a private school should have broad discretion to prescribe the moral, ethical and academic standards that its students must observe.204 Private schools should have the additional power to create, administer and implement their own rules and procedures governing disciplinary proceedings and determine appropriate penalties for rules violations.205 This broad authority certainly includes protecting other students from sexual misconduct and sanctioning this misconduct when it occurs.206 Sexual assault, if unchecked, severely undermines the institution’s central mission to educate its students, creates a climate of hostility, and polarizes the campus community.207
[*PG683] Second, a student accused of sexual assault has an important interest in his or her education that must be scrupulously protected by schools.208 A dismissal or expulsion from a college or university, the “capital punishment” of campus disciplinary systems, can alter a student’s legal status and make admission to another school impossible.209 Specifically, when a student is expelled, he is often unable to enroll in a different university because in order to transfer, he must demonstrate to the new school that he left his former school in good standing.210 Because a university degree is generally required for employment in technologically sophisticated fields and for admission to graduate and professional school, and because students with university degrees often earn higher salaries than students who are not university graduates, an erroneous expulsion may foreclose future economic opportunities for that student.211 Thus, the economic wound inflicted by an expulsion could remain with the student for the rest of life.212 In addition, in some instances the wound can run deeper and permanently damage the student’s good name, reputation and integrity.213 In highly politicized, notorious cases, universities have publi[*PG684]cized the apprehension of the offending student to placate the university community, with little regard for the emotional distress to the student or the irreparable harm to the student’s reputation.214
These seemingly disparate interests can nevertheless be reconciled to protect both the school and the student accused of sexual misconduct. Although the Constitution’s Due Process Clause affords no protection for a private university student challenging the school’s disciplinary procedures or decisions,215 a number of commentators have argued that the level of procedural protection in disciplinary proceedings should not fall because a student attends a private rather than a public school.216 This argument is persuasive: procedural due process rights are consistent with the goals of collegiate life, at private as well as public universities.217 Procedural safeguards benefit the entire school community by serving to legitimize the exercise of disciplinary authority, thereby fostering a sense of justice, fairness and community on campus.218 These values, in turn, create an effective educational environment.219 Perhaps more importantly, particularly in emotionally charged cases like those involving student-on-student sexual misconduct, the orderly procedures of requisite due process can mitigate the school’s impulse to impose rash penalties and can provide the administrative body with a shield to fend off demands for hasty retaliation.220 It seems unthinkable that a private school would even consider guaranteeing fewer rights for their students than the [*PG685]minimum rights the Constitution exacts from public schools.221 Indeed, it would be a “cruel hoax on the integrity of the educational process” for any private school to take refuge in the existing public-private distinction to justify the promulgation of otherwise unsupportable disciplinary procedures.222 Because colleges and universities perform an essential function in a democratic society and because they have been given a position of esteem, trust and responsibility, they must, in return, treat students fairly, with equal dignity, care and concern.223
Changes in disciplinary procedures will come only when initiated by the schools themselves or compelled by the courts as legislative solutions are not to be expected.224 Consequently, both courts and schools play a vital role in protecting the interests of a student accused of sexual misconduct.
For their part, courts asked to review a private school’s disciplinary decision should be more willing to do so.225 They should employ contract law principles as the doctrinal foundation of their review.226 The current deferential approach of the courts, finding that a school’s disciplinary system is “fundamentally fair” if the school substantially complies with its own established procedures, is inadequate.227 In effect, it invites private schools to eliminate procedures to avoid violating them.228 Indeed, potential lawsuits have become a sufficiently potent threat so that counsel advising private schools have [*PG686]cautioned them to protect themselves by avoiding descriptions of highly specific procedural protections (that students might later claim constituted contractual obligations).229 By employing a heightened standard of scrutiny, however, and recognizing that the contract between the school and the student is essentially adhesionary, courts can better ensure that the administration of discipline in private schools is fundamentally fair.230 The importance of recognizing the adhesionary nature of the contract cannot be overstated: courts should acknowledge that these contracts are generally executed unilaterally, contain boilerplate language and do not provide opportunity for meaningful negotiation of any of the terms.231 Moreover, courts should consider, when interpreting the terms of the contract, the extreme inequality in bargaining power and should construe ambiguities and unreasonable terms against the drafting party—the school.232 Conducting a review of a school’s disciplinary procedures would enable the courts to ensure that private schools are administering discipline in a fundamentally fair manner.233
Although the role played by the courts is essential to making certain that the discipline systems in private schools are “fundamentally fair,” the schools themselves, of course, have the primary responsibility for enacting disciplinary procedures that comport with basic fairness.234 Student-on-student sexual misconduct cases are hard cases and the procedures a school adopts must consider the competing interests presented.235 As a result of the evidentiary problems posed by these cases, schools have a heightened duty to weigh the credibility of both parties.236 Disciplinary procedures designed to uncover the pertinent facts of a contested case will reduce the possibility of an erroneous finding and insulate the school against a potential lawsuit.237 [*PG687]There are, however, a number of procedural protections a private school can provide to guarantee that the touchstones of fairness and reasonableness govern their disciplinary proceedings.238
After a complaint of student-on-student sexual misconduct has been filed with school officials, and an initial investigation of the allegations has determined that a disciplinary proceeding is in order, the accused student must be given written notice of the charges.239 Among the most basic procedural protections, this notice should advise the student of the charges against him as well as the nature of the evidence.240 The written statement should further include the grounds which, if proven, would justify discipline, and the student should not be subjected to punishment on the basis of some ground other than that stated in the written charge.241 The formal notice should inform the student of the date, time and place of the disciplinary hearing and afford him or her sufficient time to prepare a defense.242 Finally, in the interest of fairness reliability, the school should have an ongoing duty to disclose to the student any exculpatory evidence.243
To ensure fundamental fairness in the disciplinary proceedings, the accused student should be entitled to a presumption of innocence.244 More precisely, the school should bear the burden of production of evidence to sustain the charges against the student.245 Beyond the burden of proof, the school should have an established standard of production and only discipline a student if there is, at a minimum, substantial evidence to support the charges.246 The difficulty in student-on-student sexual misconduct cases has caused some schools to go even farther and require that the charges be proved by clear and convincing evidence.247
As one commentator accurately explained, “if the right to procedural due process means anything, it stands for the principle that the outcome of the hearing is not predetermined.”248 There is little doubt that the disciplinary hearing itself should be conducted with basic fairness, but there is some doubt as to exactly what basic fairness means.249 First, it is wholly impractical in many schools to guarantee that no one who has had prior contact with the accused student may be involved in the adjudication of the case.250 It is not unreasonable, however, to require members of the disciplinary board to exercise independent judgment or to recuse themselves if impartiality is impossible.251 Second, fundamental fairness in cases as sensitive and as emotionally charged as student-on-student sexual misconduct cases requires that the disciplinary decision be based only upon the evidence admitted at the hearing and the charges listed in the notice of [*PG689]hearing letter.252 To ensure strict adherence to this requirement, training is essential: disciplinary board members should remain neutral and should attempt to identify important factual issues in dispute as evidence is presented.253 Deliberations should be in good faith and decisions should be based solely on the evidence presented at the hearing.254 Finally, in the event of an acquittal, the accused student’s permanent record should be expunged of any reference to the matter.255
Fundamental fairness in the disciplinary process requires a hearing record that can be used by hearing board members during their deliberations and in the event of an appeal.256 A verbatim record, either in the form of an audio tape or stenographic transcript enables hearing board members to recall key portions of the testimony without relying on frail human memory and, therefore, ensures that the ultimate decision will be grounded on the evidence presented.257 A complete record also protects the school on appeal: the accused student must be able to point to error or fundamental unfairness in the record in order to take meaningful advantage of the right to appeal.258 Finally, knowing that the proceedings are being recorded and may become “public record” if the student appeals the disciplinary decision, hearing board members may have a greater incentive to strictly conform their behavior to established procedures.259
Cross-examination is an essential feature of the process by which truthful testimony is distinguished from falsehoods.260 Although cross-examination reduces the risk of an erroneous expulsion, face-to-face cross-examination of the victim by the accused also maximizes the victim’s ordeal.261 In situations in which the fact of intercourse is not in dispute and consent is the sole contested issue, the importance of cross-examination is magnified.262 These cases resolve themselves into problems of credibility and the hearing board must choose to believe either the accused student or the alleged victim.263 A reliable determination of the issues is essential to a fundamentally fair process, but in these highly personal and emotionally grueling cases, a school must consider the toll that the proceeding exacts on the victim.264
What can a school do in these situations? One possible solution is to permit indirect cross-examination, in which the victim is shielded from the accused student’s view.265 Another option is to allow the accused student to respond to the testimony of each witness after the witness has testified.266 Another option is to allow the accused student to offer evidence in defense, to suggest persons who might be interviewed by the hearing board and to suggest questions that might be put to these persons.267
Colleges and universities fear that permitting an accused student to be represented by counsel in a school disciplinary hearing will result in an adversarial judicial proceeding.268 In reality, a case involving student-on-student sexual misconduct is per se adversarial, and there is simply too much at stake to deny an accused student the right to an attorney.269 Further, in all likelihood the school has sought the advice of counsel in preparation for the disciplinary hearing; thus, fairness dictates that the student should enjoy that same right.270 One competing consideration is that if lawyers enter the process, the system would advantage only those students able both to find and afford an attorney.271
Even if the benefit cannot be shared equally, there are two other reasons that a student accused of sexual misconduct should be entitled to the assistance of counsel in a campus disciplinary hearing. First, because an accused student’s statements in a hearing may be relevant to subsequent or concurrent criminal proceedings, accused students should be entitled to representation by an attorney when they face potential criminal charges arising out of the same set of facts that led to the school’s disciplinary charges.272 Otherwise, students in this position face the proverbial Hobson’s choice: they can meaningfully defend themselves in the disciplinary hearings, potentially incriminating themselves and certainly exposing the strengths and weaknesses of the case to the criminal prosecutor, or—wanting most of all to avoid going to prison—they can protect their criminal defense by opting not to contest the school’s charges, virtually ensuring expulsion.273 In the context of sexual misconduct cases, with consent often the key issue and alcohol frequently a factor, piecing together the pertinent details is imperative and the absence of any defense by the accused is likely to lead to sanctions at the school level.274 Here, [*PG692]the stakes are enormous and basic fairness requires that the accused student be permitted representation by counsel.
Second, faced with serious disciplinary consequences, including expulsion, the accused student undoubtedly experiences an intense emotional response.275 School disciplinary hearings are intimidating; as a result, the student may not be able to effectively articulate his or her side of the story or version of the facts in a coherent and logical manner.276 With the potential of an erroneous expulsion, accused students should not be forced to “go at it alone”—an attorney can better articulate the student’s position and protect his considerable interests.277
In his dissent in Schaer v. Brandeis, Justice Ireland cogently articulated the difficulty faced by private schools that are confronted with the competing interests inherent in student-on-student sexual misconduct cases:
While the university’s obligation to keep members of its community safe from sexual assault and other crimes is of great importance, at the same time the university cannot tell its students that certain procedures will be followed and then fail to follow them. In a hearing on a serious disciplinary matter there is simply too much at stake for an individual student to countenance the university’s failure to abide by the rules it has itself articulated.278
Without question it is imperative that private schools protect victims of sexual misconduct, but this protection must not come at the expense of procedural safeguards designed to resolve credibility questions and lead to a reliable determination of the factual issues. Although the Fourteenth Amendment’s Due Process Clause is not availing to a private school student, concerns for fundamental fairness should not be sacrificed. Indeed, a good student disciplinary procedure should go beyond the constitutional minimum to avoid arbi[*PG693]trariness and to promote reasonable decisionmaking and basic fairness.