Courts Force Universities To Revisit Due Process Rights of Disciplined Students

Recently universities have struggled to reexamine their obligations under the U.S. Department of Justice Office for Civil Rights’ “Dear Colleague Letter,” which emphasized that avoiding discrimination against women requires aggressive and effective responses to sexual assault on campus. Across the country, schools have tried to balance the new demands of the Department of Justice, the interests of victims, and the rights of the accused.

Last summer, on July 10, 2015, this three-way conflict erupted in a San Diego Superior Court in the matter of Doe vs. Regents of the University of California San Diego, Case Number 37-2015-00010549-CU-WM-CTL. 

The case involves two UC San Diego students. It is not disputed that the two parties had a consensual sexual relationship before and after the alleged incident of rape on February 1, 2014. Ms. Doe alleged that Mr. Doe committed the act without her consent. Mr. Doe asserted that the unwanted sexual encounter did not take place.

The University held a hearing in which Ms. Doe was hidden behind a partition and not visible by Mr. Doe or panel members. The only evidence presented was the report from the University’s agent, the Office of Prevention of Harassment and Discrimination (“OPHD”), and the testimony of Ms. Doe. The OPHD Investigator was not present, nor did the University panel question any of the findings in the OPHD report or its conclusions. Mr. Doe was not allowed to examine the OPHD Investigator nor any of the 14 witnesses listed in the report. The University Panel also reviewed Mr. Doe’s questions to Ms. Doe prior to the hearing and refused to ask or re-phrased some key questions Mr. Doe submitted. The University Panel did not review or modify the questions of Ms. Doe, and allowed her to give incomplete answers to questions. No follow-up questions were allowed.

In short, the hearing didn’t look like due process as we’ve grown accustomed to it. It looked more like an inquisition. Mr. Doe sued when this procedure found him culpable. In reviewing the University hearing, the San Diego Superior Court ruled that the University’s deliberative process was patently unfair and a clear violation of Mr. Doe’s due process rights including to confront his accuser, to challenge the evidence presented against him, and to cross-examine witnesses, including the alleged victim.

The Court affirmed the importance of the University’s role to protect the rights of students on campus from sexual assault, but also noted that those concerns do not override the fundamental rights of the accused to due process and a meaningful opportunity to confront evidence and the accuser. The Court ruled that the University failed at every juncture regarding both their investigation and adjudication, and held that the University could not abdicate it responsibility as the finder of fact to the OPHD Investigator’s Report. It also held that the University abused its discretion in retaliating against Mr. Doe by increasing his punishment every time Mr. Doe exercised any right to appeal. Essentially the University demonstrated that it was not acting as a neutral judge, but wanted a confession, a conviction, and for the matter to go away. When the University did not get achieve its objective, it doubled down on its own failure to provide any semblance of fundamental fairness or due process of law by further punishing the accused.

Finally, and perhaps most interesting, the Court noted that the University Panel likely gave incriminating weight to the fact that Mr. Doe asserted his 5th Amendment right not to testify. Furthermore, the University Panel allowed Ms. Doe to assert that questions regarding her consensual sexual relationship with Mr. Doe, before and after the February 1, 2014 was not relevant in any way. The Court would not let either of these abuses stand as a valid procedure for Universities to follow. From now on Universities are on notice that they may not use the fact that an accused asserted rights as evidence of guilt, nor let the accuser have a pass on being challenged for inaccurate or incomplete testimony. Put another way, a university panel must approach evidence in a way informed by fundamental due process concepts, not just by academic verities.

The UC San Diego case shows that public universities must adhere to fundamental notions of due process even as the Department of Justice pushes them to be more aggressive in their prosecution of on-campus sexual assault cases. More cases are sure to emerge as that tension continues.

The case also shows that we cannot count on our children’s colleges to look out for their rights. As fall semesters begin on college campuses across the country, students and parents should now have a serious discussion about how to assert rights (like the right to remain silent) in a college setting, and what are the basic rules of due process. Any student who is not afforded such fundamental fairness and due process should also know how to resort to a court that will enforce those rights.

Mark McGuire

Mark H. McGuire is an associate attorney with Brown White & Osborn, LLP. Primarily practices in the area of trust, estate and bankruptcy litigation, representing fiduciaries, debtors, beneficiaries and creditors. He is also a court appointed attorney in Riverside County, representing minors and conservatees in contested guardianship and conservatorship matters.
Mark McGuire