In July, a New York state appellate court ruled that the State University of New York at Buffalo violated a student’s due process rights when it disciplined him for harassment and weapons possession without “any evidence, much less substantial evidence,” of his guilt.
The plaintiff in the case, Tyrone Hill, alleged that he was the victim of mistaken identity, and that the person who had pointed an Airsoft gun at several freshman members of UB’s football team was not Hill but rather one of his football teammates, Zachary Lefebvre. Although the police did not charge Hill in the incident, UB found him responsible and sentenced him to disciplinary probation, community service, and exclusion from on-campus housing. Hill sued UB to have the decision overturned, arguing that the university’s disciplinary process had violated his due process rights by, among other things, failing to give him adequate notice of the charges, not allowing him to cross-examine witnesses, and not allowing him active representation during his hearing. In finding for Hill, the court had some harsh words for the university:
[W]e are compelled to express our dismay at respondent’s cavalier attitude toward petitioner’s due process rights in this case, and we remind respondent—and all other colleges and universities, particularly state-affiliated institutions—of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled.
Following this admonition, one might expect to see some positive changes to UB’s disciplinary policies. Not so, though, according to a new report from UB’s student newspaper, The Spectrum. The Spectrum reports, “Nearly four months after the judgment, the only change that the [Student-Wide Judiciary] made is to record all administrative hearings.”
One protection that some in the UB community have been advocating for, according to The Spectrum, is allowing an accused student to have an advisor or attorney participate actively in the proceedings on his or her behalf. According to recent UB graduate and former Student-Wide Judiciary chief justice Joe Wolf, UB uses law students to act as prosecutors in student disciplinary cases, while requiring accused students to represent themselves — something Wolf told The Spectrum he finds manifestly unfair:
The deck is totally stacked against these students. Most of these students have never been in trouble or defended themselves, yet they have to argue against students two years into law school or UB officials. I wish anyone good luck in that situation.
Predictably, UB’s rationale for requiring students to act as their own advocates is that the student conduct process is merely “an educational process.” Given the hefty punishments and lifelong consequences that campus judiciaries can dole out, however, this rationale does not hold much water. Consider what one federal judge recently wrote in a case brought against the University of Notre Dame by a student alleging he was denied fundamental fairness in a campus judicial proceeding:
When asked at the preliminary injunction hearing why an attorney is not allowed to participate in the hearing especially given what is at stake—potential dismissal from school and the forfeiture of large sums of tuition money—Mr. Willerton, the Director of the Office of Community Standards and a member of the Hearing Panel, told me it’s because he views this as an “educational” process for the student, not a punitive one. This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is “punishment” in any reasonable sense of that term.
If UB truly does not learn from its judicial rebuke and revise its policies to be fairer to students, it may find itself on the receiving end of more lawsuits. Cornell University, for example, finally revised its sexual misconduct policy to provide accused students with more robust procedural protections… but not before it was on the receiving end of multiple lawsuits. Ideally, schools would recognize the importance of a fair process to all parties and would incorporate important procedural protections — like the right to active assistance of counsel, the right to question witnesses and confront one’s accuser, and the right to see the evidence against oneself — from the beginning.