DUE PROCESS DENIED AT PUBLIC UNIVERSITY

Timothy M. Burke, Manley & Burke

A new decision¹ by a federal court in Cincinnati stands in stark contrast to the recent decision by the Supreme Court of Massachusetts in the Brandeis case. The Brandeis court refused to recognize the due process rights of a Brandeis student. On the other hand, the federal district court in Cincinnati recently enjoined the University of Cincinnati from enforcing its proposed disciplinary suspension  of one of its students when the court believed that student had, in all likelihood, been deprived of his constitutional due process rights.

The facts in the two cases were remarkably similar. In each case, a male student had been accused of raping a female student. In both cases, local law enforcement chose not to prosecute the male student, apparently concluding that the evidence against the student in each case was not very strong. However, both universities proceeded to take the accused student through university discipline. The Brandeis case was fully reported in prior issues of Fraternal Law.²

The University of Cincinnati case resulted in proposed University discipline which included a one-year suspension from the University, an additional one year of probation, and banning the student from residing in University of Cincinnati residence halls. The student, a starting member of the University of Cincinnati football team, was on a full athletic scholarship to the University.

The ultimate difference between the Brandeis case and the University of Cincinnati case, is that Brandeis is a private university. The University of Cincinnati is a state university. The University of Cincinnati admitted in the defense of its lawsuit that its actions were taken under the color of state law, but denied that they had violated the Constitution. The court pointed out that “a public school student has property and liberty interests that are protected by the due process clause,” and that when a student in a public school faced lengthy suspension, that student was, at a minimum, entitled to notice, an explanation of the case against him, and an opportunity to present his side of the story.

[The ultimate difference between the Brandeis case and the University of Cincinnati case, is that Brandeis is a private university]

Rather than provide such notice to the student, a University of Cincinnati Administrator simply sent a letter to the student ordering him to report to his office to respond to unidentified “assault and harassment charges.” The letter did  not contain any reference to any specific incident, nor the name of the victim of any alleged assault. As a result of the deficiency in the notice, the court found that the university failed to provide the protection afforded by the due process clause.

The court went on to note that because the plaintiff was not permitted to see the evidence against him in the form of his accuser’s statement, or the written answers that the accuser provided to the university questions. Without stating precisely what rights the student may have had to confront the evidence against him, the court found that in the absence of providing some reasonable level of notice as to the evidence against him, the student was likely to prevail on his claim that refusing to allow him access to evidence deprived him of his due process rights.

[As private social organizations, fraternities, and sororities are not bound by the Constitution of the United States.]

Finally, the court noted that since the student had been denied the right to present evidence and/or witnesses in his favor, his due process right had, in all likelihood, been denied as well. Thus, the court found three likely due process violations: lack of notice of the charges; lack of notice of the evidence; and lack of opportunity to present a defense.

This case was before the court on a motion for a preliminary injunction which was granted. The court did not issue a permanent injunction and presumably the University of Cincinnati is still free to consider disciplining the student if they_ do so in a manner which provides appropriate due process protections to the individual.

As private social organizations, fraternities and sororities are not bound by the Constitution of the United States. They are, however, bound by their own rules and regulations and, in disciplining one of their members, fraternities and sororities must follow their own procedures. However, should a university seek to discipline a fraternity chapter or one or more of its members, if that university is a state university, it appears to be clear that the chapter and its members are entitled to at least minimum due process protections. At a private university, those rights are far less clear.

¹ LaDaris Van v. University of Cincinnati, United States District Court, Southern District of Ohio. Case No. C-1-00-846.

² See Fraternal Law, September 2000, No. 73.  Private  Universities and Due Process and Fraternal Law, November 2000. No. 74, Massachusetts Supreme Court Rules in the Brandeis Case.