Due process rights at private universities? New York court rules on RPI’s “constitutional” infringement

In cases involving a university’s disciplinary actions against a student accused of sexual misconduct, courts have generally differentiated between public and private institutions. The former, as instruments of the state, are bound by the Constitution and must grant students due process rights to the extent required by the Fourteenth Amendment. Complaints against private colleges, on the other hand, are often adjudicated on a contract theory: The college is contractually bound to respect the promises it made to students in its student handbook. Despite these promises, the institutions’ policies often fall far short of the protection guaranteed at public institutions by virtue of the Fourteenth Amendment. Two recent cases touch on — but don’t definitively answer — the question of whether students at private colleges might also have due process rights.

During the summer of 2016, a female student at Rensselaer Polytechnic Institute lodged a complaint against John Doe, a former boyfriend and an international student at the University at Albany, State University of New York, alleging that he sexually assaulted her at his residence in September and October of 2015 in violation of RPI’s sexual misconduct policies. RPI launched an investigation and found by a preponderance of the evidence that Doe had violated the policy. As a result, RPI told Doe that it would provide SUNY Albany with a report of the investigation. 

Doe sued RPI, and in November 2017, a New York trial court blocked RPI’s attempt to notify SUNY Albany of the case results. The trial court ruled that RPI “had no jurisdictional basis in which to subject [John Doe] to [an] interview” or to “report, inform, publish or share” any information regarding the alleged incident to SUNY Albany. Further, even if RPI had jurisdiction over him, “the conduct demonstrated by [RPI] towards [Doe] . . . was a clear violation of his constitutional rights” (emphasis added), since he was notified of the disciplinary meeting only moments before and did not have an adequate opportunity to review the evidence. However, the trial court did not explain why, as a private institution, RPI would be bound by the Constitution. 

In May, an appellate court declined to opine on whether RPI violated Doe’s constitutional rights, given that the path taken by RPI in making its finding was already “arbitrary and capricious.” Courts rarely, if ever, hold that private institutions have violated constitutional rights, as the Constitution only restricts government actors. But interestingly, the New York trial court is not the only one to suggest such an idea.

A recent decision by a district court of Tennessee granted a preliminary injunction against Rhodes College, a private institution, having found that the student-plaintiff demonstrated a sufficient likelihood that “he was subjected to an unfair hearing in violation of due process rights” (emphasis added) when the student was denied the opportunity to cross-examine the female student who accused him of rape. Specifically, the court distinguished this case from Z.J. v. Vanderbilt Univ., 355 F. Supp. 3d 646 (M.D. Tenn. 2018) and Doe v. Belmont Univ., 334 F. Supp. 3d 877 (M.D. Tenn. 2018), where it was held that “[plaintiffs’] allegations that constitutional due process was violated because a university did not allow cross-examination [do] not stand when the claim is made through a breach of contract claim against a private university.” But the plaintiff in the Rhodes case “invokes due process concerns under Title IX, not a breach of contract theory.” While that decision is not a final ruling on the merits — the court could still rule for the school at the conclusion of the case — it is a signal to private institutions that courts might consider insufficient procedural safeguards during disciplinary proceedings to be a basis for due process claims. As in the RPI case, no explanation was given for why Rhodes College would be bound by the Constitution. It’s likely that courts are using “constitutional rights” as a shorthand to describe what rights the students have under their contractual relationships with their institutions or under statutory law, and viewing them as reasonably equivalent to the rights protected by public institutions. The institution isn’t violating rights it is obligated by the Constitution to protect, but it does abridge rights that it promises and which are also protected from government action by the Constitution.

In FIRE’s Spotlight on Due Process report, RPI earned an F for its disciplinary procedures because the school fails to guarantee adequate procedural safeguards for students in disciplinary proceedings. (RPI also has a long history of abandoning its commitment to student and faculty freedom of expression, including calling the police to film protests and later using the footage to identify students and charging them with various violations of the student handbook.)

In November 2018, the Department of Education proposed federal regulations that would require schools to provide more procedural safeguards in sexual misconduct cases (including, notably, live hearings where the accused can cross-examine his or her accuser). FIRE noted that the new regulations would “dramatically improve free speech and due process protections for students on campus.” Given the proposed regulations and recent court rulings, RPI and other private schools may have reason to revise their campus due process policies sooner rather than later.

Qi Xie is a FIRE legal intern and a rising 2L at the University of Chicago Law School.