Federal Court: Machete-Waving Student? Due Process Still Necessary
August 7, 2012
Last Friday, the United States District Court for the Eastern District of Pennsylvania overturned the expulsion of a student at a public university in Furey v. Temple University. The case is an interesting read—it involves a student waving a machete at an off-duty police officer—but what is most interesting is the court's holding and its novel approach to due process in the student disciplinary context.
Liberally citing the Supreme Court's seminal due process case of Mathews v. Eldridge, 424 U.S. 319 (1976), the federal district court made a number of findings about specific procedures required to ensure due process in student expulsion hearings.
First, the court noted that the student had been repeatedly told his testimony was voluntary and that there could have been no violation of a putative "right to remain silent." In reaching this conclusion, the court made a stronger statement that such a right exists than previously announced elsewhere, noting that to some extent "there is a right to remain silent in disciplinary proceedings while the student is also facing criminal charges." Federal district courts in other circuits have issued differing opinions on this subject: for example, in Coplin v. Conejo Valley Unified Sch. Dist., 903 F.Supp. 1377 (C.D. Cal. 1995), the United States District Court for the Central District of California declined to find that due process requires a "right to remain silent." It is good that the district court takes seriously the due process issues raised when parallel college disciplinary procedures and criminal procedures are in play.
Second, the court held that "due process required that the plaintiff be able to cross-examine witnesses." This stands in contrast to cases like Smith v. Senigman Unified Schl. Dist. No. 40, 664 F. Supp. 2d 1070 (D. Ariz. 2009) (holding that a student had no right to know the identity of her accusers or to confront those accusers), and is a natural extension of the Second Circuit's decision in Winnick v. Manning, 460 F.2d 545 (2nd Cir. 1972) (holding that where witness testimony is not determinative of the outcome of the case, no right to confrontation attaches). Since the witnesses in Furey were critical, the student should have been afforded the right to cross-examine them. For the most part, the student in Furey was able to cross-examine witnesses (albeit by posing questions to an administrator who then verbalized the questions), but when on appeal an administrator interviewed a witness on his own and outside any hearing, the student had no opportunity to rebut.
Third, the court was strongly critical of Temple University for treating the student with skepticism, while treating the adverse witness favorably: "This difference in treatment ... increased the adversarial nature of the Hearing, by conveying to the plaintiff that he was doubted while [the other witness] was believed." In addition, the administrators controlling the cross-examination, by demanding additional reasoning and refusing to ask certain questions, increased the adversarial nature of the hearing. This is important because one of the clichés repeated often by university counsels is that because the college disciplinary hearing is "non-adversarial," it needn't provide specific due process protections. However, the Eastern District rightly implied that the adversarial nature of a proceeding doesn't just have to do with whether there are parties, or whether there are lawyers present, or whether there is a "winner" and a "loser," but also the tone and demeanor of the investigation. Coming into a proceeding with an axe to grind increases the need, under Mathews, for additional formal due process. Since "[r]ules of evidence, standards of proof, and other elements of court proceedings" are needed in adversarial proceedings, when a college disciplinary proceeding seems one-sided, these might be required. Indeed, some types of campus disciplinary proceedings, such as those related to sexual assault accusations, are by their very nature contentious, and might warrant more formal process simply due to the nature of the alleged conduct itself: the balance of equities might require that all students accused of rape be afforded a lawyer, for example.
Finally, and most importantly, the court held that "the accumulation of mistakes at each step of the process and failures to comply with the Temple Code resulted in a violation of procedural due process," implying that perhaps no single mistake identified would alone have required the the student's expulsion to be vacated. Administrators often argue that college disciplinary proceedings should be a "fluid" and educational process that do not have the same specific requirements as criminal or civil proceedings. Yet students are still owed due process under the law. If administrators and university counsel are willing to defend their lack of specific due process guidelines on the basis that college disciplinary proceedings are unique enterprises, they are implicitly conceding that judges must also assess the fairness of those proceedings a fluid manner (as the Eastern District did) on the record as a whole. A student might even be afforded all the formal process in the world (e.g., a lawyer, opportunity to rebut, appeal, etc.), but if the accumulation of mistakes affects the character of the proceeding "as a whole," courts must be able to step in and fix things.
One perverse (or convenient, from the administrators' perspectives) consequence of this due process test is that while the student in Furey had a "clearly established" constitutional due process right that was violated here (following the analysis from the Supreme Court's qualified immunity case of Harlow v. Fitzgerald, 457 U.S. 800 (1982)), each defendant was nevertheless entitled to qualified immunity because "[n]o one defendant was involved in all ... aspects of the disciplinary process." That is, a reasonable official in each of the defendants' positions would not have known that he or she was violating the student's rights. Basically, the administrators in Furey were shielded from personal liability because while they were collectively responsible, they were each individually ignorant. One wonders when ignorance of basic due process will stop being an excuse for most college administrators.
Ultimately, this case is a positive development for student due process rights in the Third Circuit.