North Dakota University System Still Fighting Due Process Rights For Students

The next time you hear a North Dakota University System official talking about how students are their priority, think about how hard the university system worked to oppose legal protections for students in campus proceedings.

SB2150 is a bill giving North Dakota university students facing serious accusations some due process rights. It was inspired by the experiences of Caleb Warner who was expelled by the University of North Dakota for false rape allegations. Even long after law enforcement had cleared Warner of any wrongdoing, UND refused to reinstate him until shamed in the national media and threatened with legal proceedings by a student rights group.

Basically, the bill gives students the right to an attorney in proceedings against them. Currently students may access legal counsel, but those lawyers are not allowed to participate in the proceedings.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]…the university system – specifically general counsel Christopher Wilson – has opposed giving students lawyers because it would undermine the “educational” nature of the process. Because getting railroaded in a campus tribunal is a learning experience, I guess?[/mks_pullquote]

Meaning that the universities can, with their vast legal resources, initiate proceedings against a student even as they deny that student the right to an attorney participating in those proceedings.

Sound fair? It isn’t, but the university system – specifically general counsel Christopher Wilson – has opposed giving students lawyers because it would undermine the “educational” nature of the process.

Because getting railroaded in a campus tribunal is a learning experience, I guess?

But the universities have been largely unsuccessful in their efforts against SB2150. The bill sailed through the Senate on a 42-1 vote – Minot Republican David Hogue was the lone “nay” vote – and passed the state House unanimously 92-0. The media has largely reported this debate as over.

But it isn’t over. The NDUS is still fighting.

The Senate and House must reconcile the differences in the bill  because the House made some minor changes, mostly giving lawyers representing students the explicit right to cross examine witnesses. Yet rather than concurring to this bill the one lawmaker in Bismarck who has voted against this common sense reform, Hogue, has sent it to conference committee (he chairs the Senate Judiciary Committee).

A move that gives the university system one last-ditch effort to water it down, and the university system is pushing hard.

In an email sent Tuesday to Senate Judiciary Committee (see below), NDUS Chief of Staff Murray Sagsveen urges committee members to amend the bill to “Not allow an attorney to cross-examine witnesses” during proceedings against students.

Sagsveen references a memo from Wilson (see it here) which claims that allowing cross examination might allow a victim to questioned by the perpetrator of a crime. Wilson quotes the federal Department of Education’s Office of Civil Right’s policies prohibiting such things:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

This is an extremely controversial position by the OCR, one that has been roundly criticized (see this open letter from 16 Penn Law School professors decrying the policy as detrimental to due process rights).

Not that we need to delve into the legal weeds to understand why this policy is problematic. The 6th amendment’s confrontation clause guarantees our right to confront witnesses against us, up to and including our accusers. And while it’s generally accepted that this clause only applies to criminal proceedings, if the universities are going to establish tribunals to adjudicate matters such as sexual assault I think it behooves us to ensure that the accused in those proceedings be given the maximum amount of due process protection.

That the North Dakota University System opposes those due process protections is beyond shocking. It’s downright stomach churning.

And it shows just how much esteem the NDUS really has for students. As seems to be the case far too often, the universities seem to care more about what’s best for them than their students.