Private Institutions in the Public Eye

As student affairs professionals, the national conversation on campus sexual violence affected, at a minimum, how we ensure equitable application of institutional resources, institutional investigations, and disciplinary processes related to sexual assault incidents.  Something that has been lost in the important conversations on due process rights and equity in responding to complaints is the quiet, but possibly transformational, impact this debate has had on private institutions, and the legal framework in which they operate.

For decades, the prevailing legal framework pertaining to student conduct at private universities was one of deference, acknowledging that private institutions operated in a sphere different from that of the constitutional obligations assigned to public institutions.  Private institutions have to provide students “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.”  The legal application of “arbitrary” is defined as a “decision made without regard for the facts,” meaning, a decision supported by at least some evidence would not be considered arbitrary.  Institutions also have to follow their own published and stated procedures, as stated in the oft-cited case Tedeschi v. Wagner College, “[w]hen a university has adopted a rule or guideline establishing the procedure to be followed ... that procedure must be substantially observed.” These parameters established a large field in which private institutions could operate, but recent years have shown that this field is narrowing, and the determination of what constitutes “fundamental fairness” has much to do with it.

GUIDANCE & MANDATES

The issuance of the Department of Education Office of Civil Rights 2011 Dear Colleague Letter, which provided extensive guidance on appropriate and equitable disciplinary procedures to institutions that accept federal funding, was one of the first broad-based efforts to apply a set of minimum expectations to institutional disciplinary processes en masse.  Even for public institutions, the framework first established by Dixon v. Alabama and Goss v. Lopez provided flexibility in constructing institutional disciplinary procedures.   These federal guidelines (followed by the 2014 FAQ document) were followed by additional developments at the state level in many states.  State-level legislation codified procedural and policy aspects such as affirmative consent and the preponderance of the evidence standard. Beyond federal guidance, two states, New York & Virginia, mandate transcript notations for students found responsible for sexual misconduct at both public and private institutions. With the increased impact and visibility of student conduct decisions at private institutions, courts applied renewed scrutiny on private institutions and the historic deference granted to those institutions.

GREATER EXPECTATIONS

While court scrutiny on due process provided to respondents increased gradually over the past few years, one case in particular erased much of the line separating the due process expectations at public and private schools. In Doe v. Brandeis University, United States District Judge Dennis Saylor, in denying part of Brandeis’ motion to dismiss, drew clear connections between the due process expectations of public and private institutions.  First, the framework Judge Saylor used in evaluating Brandeis’ process was something slightly different from “fundamental fairness”, but something Judge Saylor called “basic fairness.” Within this, the judge found that Brandeis’ process was both procedurally unfair (in regards to the actual published procedures of the institution, including access to information, the standard of evidence, and access to witnesses) and substantively unfair (in that Brandeis staff made incorrect judgements regarding the information they used to make their decision). If these terms sound familiar, they should.  They draw strong parallels to jurisprudence surrounding the 14^th Amendment of the United States Constitution, which includes the legal doctrines of procedural due process and substantive due process. The judge also made a clear statement regarding the deference afforded to private institutions, saying:

“It is well-established, however, that a private 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.’ However, courts may refer to those rules in evaluating the fairness of a particular disciplinary hearing.”

The Brandeis case, decided in March 2016, has been cited several times in recent cases involving accused students, as well as in the interim guidance recently released by the Department of Education.

NEXT STEPS FOR PRIVATE INSTITUTIONS

To adapt to this new reality, private institutions should look to shore up existing policies and processes related to sexual misconduct and other serious student conduct matters. Any process review should evaluate these aspects:

• Transparency – Institutions must ensure open and equitable access to investigation and other case materials to all parties.  This ensures parties can properly prepare for all meetings and hearings that take place throughout a process.  If the institution has information that it has not shared with all parties (and uses in its decision-making process), it needs to provide very clear and persuasive reasons why that is the case.
• Access to Parties & Witnesses – One of the main issues coming up in recent case law is access to opposing parties and witnesses, as well as the ability to ask questions prior to a decision being made by the institution (often using the legal terminology of “cross-examining” witnesses or parties).  The new OCR interim guidance states “parties should have the opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing to decide responsibility.” As a recent case from the California Court of Appeals suggests, “where… findings are likely to turn on the credibility of the complainant, and respondent faces very severe consequences… we determine that a fair procedure requires a process by which the respondent may question, if even indirectly, the complainant.”
• Decision-Making Authority – The single-investigator model, which gained significant traction in recent years, is criticized in the Brandeis case. While neither courts nor the Department of Education have, in a general sense, prohibited the use of single-investigator models, processes that impart significant decision-making authority to a single person may have a higher burden to meet to show equity, transparency and investigative staff are free from bias or conflicts of interest.
• Accessibility & Institutional Flexibility – Private institution still do have some authority to customize and create processes that align with their campus community. Institutions should strive to make processes clear and easy to understand for students, families and other institutional constituencies.  While doing that, institutions can also draft policies in a way that gives flexibility and room to maneuver when dealing with particularly difficult and complex cases.  For example, when drafting policies, why use “must” when “may” provides more flexibility? Clarity about the complexity of these cases, while providing clear direction on process stages, allows private institutions the ability to work proactively with parties from a position of transparency and openness.