The Elusive “Fairness” of University Investigative Processes

Haellie Gordon, ^[1] Fraternal Law Partners, hgordon@manleyburke.com

On May 4, 2022, the Theta Delta Chi chapter (the “Chapter”) at Stanford University (the “University”) filed a complaint against the University following the revocation of the Chapter’s recognition for six (6) years.^[2] The University’s decision came in response to the drug-related death of chapter member Eitan Wiener. The Chapter’s complaint alleges various procedural issues in the University’s investigation and hearing process, including the University’s failure to disclose/turn over all evidence to the Chapter, the hearing panel’s failure to interview witnesses, and the failure to allow the Chapter to cross-examine said witnesses.^[3] The Chapter also claims the six-year suspension is not consistent with precedent, as no precedent was reviewed, and the sanction was ultimately too severe. The Chapter requests the Court order the University to set aside the findings and interim suspension issued against the Chapter.^[4]

While this case has not gained much progress since May, the claims and relief sought are strikingly similar to those in Alpha Nu Association of Theta Xi v. USC.^[5] In that case, Theta Xi’s local chapter sought to set aside USC’s decision to revoke its recognition for six (6) years.^[6] USC’s decision came in response to complaints regarding hazing and underage alcohol consumption by the Chapter. In its Complaint, the local chapter cited unfair procedures and a lack of evidentiary support for USC’s factual findings in the investigation process.^[7]

In the Alpha Nu decision, the appellate court noted that administrative agencies are given considerable latitude in the investigative and disciplinary process with regard to the precision, formality, and matters reasonably implied therein. As such, a university’s findings do not need to be extensive or detailed. Instead, the school’s decision only must inform the parties and reviewing courts of the theory upon which they arrived at their final findings.^[8] Additionally, the Alpha Nu court found that an administrative hearing does not have to include all the safeguards and formalities of a criminal trial to be considered fair, such as cross examinations, especially when assertions are sufficiently supported by credible evidence. Instead, fairness in the decision-making process of administrative agencies only requires adequate notice, reasonable opportunity to respond, and a fair and unbiased decision-maker.^[9]

The Alpha Nu court went on to hold that USC adequately revealed its analytic route from evidence to action in its final suspension of the chapter’s recognition, therefore providing adequate notice. Further, the local chapter had received an adequate opportunity to review and produce evidence, satisfying the reasonable opportunity to respond requirement. Finally, the Court held USC only considered those allegations that had ample evidentiary support, satisfying the unbiased decision-making process component.^[10]

Based on the countless similarities between the two cases, the Theta Delta Chi chapter at Stanford University faces an uphill battle in its requests for greater procedural safeguards and ultimately the reinstatement of their recognition at the University. Alpha Nu demonstrates the great latitude afforded to universities in their investigative and decision-making processes with regard to what constitutes as “fair,” and signifies potential weaknesses in Theta Delta Chi’s case.

[1] Haellie Gordon is a legal intern at Manley Burke and is a second-year law student at the University of Cincinnati.

[2] Pet. for Writ of Admin. Mandate, Theta Delta Chi Ch. v. Hicks, No. 22CV398711 (Santa Clara Sup. Ct. Cal., May 4, 2022).

[3] Id.

[4] Id.

[5] Alpha Nu Assoc. of Theta Xi v. Univ. of S. Cal., No. B303269 (Cal. Ct. App. 2d Dist. March 3, 2021).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.