FIRE’s mission statement makes clear that we work to “defend and sustain individual rights”—but what exactly are those individual rights? A few leap to mind readily: freedom of speech, freedom of religion, freedom of assembly, freedom of conscience. Those are easy; First Amendment rights are the all-stars of constitutional law. But while the First Amendment “freedoms” get all the attention, the right to due process is too often overlooked. That’s a shame—because in many respects, the right to due process is the guarantor of all other constitutional rights. Due process rights find their textual origin in the Fifth Amendment, which proclaims that “No person shall… be deprived of life, liberty, or property, without due process of law” by the federal government. (The Fourteenth Amendment enacts the same restriction against the states.) In the 215 years since the ratification of the Bill of Rights, American jurists have developed and expanded the concept of due process, but that’s a topic that deserves its own post—or, more accurately, its own law school course. (For those interested, here’s a useful overview of due process).
Suffice to say for our purposes here that the concept of due process has permeated the American consciousness to such an extent that Americans have an underlying expectation that they will be treated fairly in proceedings that may affect their property, livelihood, or general well-being, broadly construed. This expectation of fair treatment holds even when the proceedings are “quasi-judicial,”—i.e., not directly mandated or governed by federal or state law. In his famous and influential article “Some Kind of Hearing,” 123 U.Penn. L.Rev. 1267 (1975), Judge Henry Friendly came up with a series of elements, listed here in terms of importance and relative priority, that he deemed necessary for a hearing to satisfy due process. (The first requirement being, obviously, a hearing.) Friendly created his list in reference to government hearings, but it’s useful to review regardless.
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepare a record of the evidence presented.
- Requirement that the tribunal prepare written findings of fact and reasons for its decision.
The point is this: Because Americans enjoy an expectation of due process—which has in many respects become shorthand for common sense notions of fair treatment—they know a kangaroo court when they see one, whether at work, school, or otherwise. The Johns Hopkins University Student Conduct Board that found junior Justin Park guilty of “failing to respect the rights of others,” “harassment,” and “intimidation,” was precisely such a court.
Indeed, one of the most troubling aspects of Justin’s suspension is the stunning lack of due process he was afforded.
Justin’s hearing was conducted by a judicial body that was anything but unbiased. According to a report in the Johns Hopkins University News-Letter, the Hopkins student paper, the Conduct Board “was comprised of two Hopkins staff members—one employed by the Recreation Center and the other by the Office of Residential Life—and three students including one member of the Black Student Union (BSU).” The fact that a member of the Black Student Union—the group that initially complained about Sigma Chi’s party invitation—was allowed to remain on the board responsible for determining Justin’s guilt is simply unconscionable. It’s safe to say that being judged by one’s peers, rather than one’s accusers, is not only a bedrock principle of American justice, but is also one of the core principles of fairness.
Equally troubling, Justin’s hearing was conflated with that of Sigma Chi as a whole. As the News-Letter reports, “[a]ll Sigma Chi members and Park were put on trial before the Conduct Board in one hearing.” The problems here should be obvious. While it’s bad enough that Justin alone was made to bear the brunt of any alleged transgressions arising out of Sigma Chi’s party, it’s even worse that he was denied an individual hearing. As Justin himself told the News-Letter, “Sigma Chi and I had a combined hearing; if we’re facing different charges, as was the case, we should’ve had different hearings. And I don’t believe that I should’ve been tried as an individual—I do not deserve to be singled out, and prosecuted separately by the University for an act performed as a proxy of Sigma Chi,” Park said.
As we’ve argued elsewhere, the charges against Justin are baseless. That said, it’s crucial to remember that Johns Hopkins University has not only punished an undeserving student, but that it has done so in a way that violates the basic American notions of fairness embodied in due process. Hopkins’ kangaroo court adds insult to already incredible injury.