Notre Dame degrades already scant student disciplinary protections in the name of COVID-19

To a Midwesterner like me, the University of Notre Dame is an institution that, love it or hate it, you have to respect. You couldn’t grow up as a teenage boy in Toledo, Ohio, without knowing at least a little bit about gridiron legends like Knute Rockne and Lou Holtz (the latter of whom, I should note, has taken a strong stand in support of free speech on campus). 

Unfortunately, when it comes to giving its own students a fair shake when they are accused of campus offenses, Notre Dame has truly been a basement-dweller as of late. It received an F grade in FIRE’s Spotlight on Due Process report for 2019–2020, with its non-sexual misconduct procedures receiving just one out of 20 possible points. This means Notre Dame’s policy failed to guarantee students any meaningful version of elementary protections such as the presumption of innocence, the right to impartial fact-finders, and the right to present all relevant evidence to those fact-finders. You’d think it would be madness to leave those out if you want a fair hearing, and you’d be right. 

You might also think it can’t get much worse. Well, Notre Dame is here to prove you wrong. The only meaningful protection that Notre Dame even partially provided students was the right to appeal, where FIRE gave Notre Dame one out of a possible two points. But in its Jan. 25 COVID-19 addendum to its student life guide, Notre Dame has stripped Domers of even that.

What can’t you appeal? Well, first of all, you can’t appeal whether the university can apply this new process to you, versus the preexisting code that is already terrible: “The determination by [Notre Dame’s Office of Community Standards] as to which process applies is final, and may not be appealed.” So whatever minimal rights you thought you had are right out the window, and no complaining. 

The policy then establishes two new “consequences” for violating COVID policies — COVID Probation and COVID Dismissal. Miss a mandatory COVID test, and you first get a warning, then probation, and then dismissal — and “there are no appeals except for students assigned COVID Dismissal from the University.”

"It’s hard to figure out a legitimate public health reason to ban appeals."

As FIRE previously acknowledged in a statement, one can appreciate the need to take expeditious action when it comes to people who are potentially causing public health problems during a pandemic. That action does not necessarily have to be a punishment, of course, and most of the time it isn’t. (Even Notre Dame gives you one warning.) But it’s hard to figure out a legitimate public health reason to ban appeals. If Notre Dame can trust students not to run around purposely coughing on people after they receive a warning or while the original process, brief as it may be, is underway — and unless they are literally locking students in a room while this is going on, they do trust them not to — it’s hard to imagine why they couldn’t trust them not to while the appeal proceeds, since they will remain on campus anyway. (Remember, those actually kicked off campus with a COVID Dismissal do get an appeal.)

Further, in the case of meritorious appeals, if it turns out Notre Dame might have made a mistake about what happened or who is responsible, that information actually is important both to the affected student and for public health reasons. It’s important to the disciplined student, of course, as they are being unjustly denied the opportunity to receive an education that semester. But it’s also important to the college community, if it turns out that someone else might be engaging in uncorrected behavior that puts others at risk.

Colleges and universities have made many changes this year because of COVID-19, and it’s hard to overstate the level of disruption that the pandemic has caused to both students’ and faculty members’ experience of higher education. While this has undoubtedly been a challenge to college administrators like those at Notre Dame, they nevertheless have a responsibility to think through the implications of the changes they make and not to treat a pandemic as an excuse to cut corners, treat students unjustly, or put public health unnecessarily at risk. Notre Dame’s policy does all three of these things. It should be replaced with something better.