North Dakota Legislature Passes Bill Giving Students Some Due Process Rights

The last time I wrote about SB2150, a bill giving students the right to involve an attorney in some university disciplinary proceedings, the North Dakota University System was still fighting hard to water it down. They wanted remove from the bill language allowing for lawyers representing students to cross examine witnesses testifying against their clients.

That’s a right guaranteed, along with the right to counsel, in the 6th amendment of the Constitution. But in the murky world of campus tribunals, a lot of constitutional rights don’t exist.

But the tide was against the university system. The bill has passed and is on the way to Governor Jack Dalrymple for signature.

Their only ally in Bismarck was Senator David Hogue (R-Minot), who in fact was the only lawmaker to vote against this bill. Hogue maintains that the legislation is unnecessary because universities ought not be adjudicating serious crimes:

Sen. David Hogue, R-Minot, the only member of either chamber to vote against the amended bill, said it “solved some problems that did not exist” and is broader than necessary.

“Sometimes lawyers should be seen and not heard, and that is a perfect example,” he said.

Law enforcement and prosecutors, not universities, should handle serious crimes, Hogue said.

“And so now we’ve decided that the universities are going to investigate crimes and form mini-tribunals to figure out what we need to do,” he said.

I don’t disagree at all with Hogue’s statement about universities investigating crimes. Issues like sexual assault belong in the criminal justice system, where trained law enforcement and legal experts can handle them.

The problem is that the federal government requires these tribunals. The requirement was established under the Obama administration via a 2011 “dear colleague” letter from the Department of Education’s Office of Civil Rights. Schools have to hold these tribunals under the Obama administration’s interpretation of Title IX or they will lose all sorts of federal dollars.

“It is not altogether clear, however, why the federal government requires such serious cases to be handled by campus tribunals staffed by academics, instead of by professional judges and lawyers,” a group of Penn Law faculty members wrote in an open letter about this requirement in February. “Perhaps it is time to funnel the more serious cases through the criminal justice process and to make that process much more accessible to and supportive of sexual assault complainants.”

I don’t think there’s any “perhaps” about it, but state policy makers can’t do anything about federal policy. What they can do is ensure that North Dakota’s public universities, in complying with the federal government’s absurd policies, protect the rights of students.

That’s what SB2150 does. And should give us all pause that our state’s university officials fought so long and hard against it.

It really makes you wonder where their priorities are.