University of Oregon Violates Student Due Process Rights in Discipline Proceedings - Arnold Law in Eugene, Oregon – Powerful Advocacy. Proven Results.

University of Oregon Violates Student Due Process Rights in Discipline Proceedings

09.29.2015 – by Mike Arnold

Often the University of Oregon in student conduct proceedings does not require the complainant to be present at the administrative conference in order to be cross-examined by a student. This is standard practice in 2014 and 2015 for sexual abuse allegations.

Rather, the University of Oregon may attempt to conduct a secret follow-up interview of the complainant and provide the recording of that interview to a student. A student may be given a limited time to provide questions to the University of Oregon based off that interview. It is then in the discretion of the University of Oregon if those questions would be asked of the complainant and often they never bother to exercise that discretion, making no attempts to honor this constitutional right of cross-examination.  Even if they did follow up with questions this would still fail to qualify as cross-examination, and is merely an investigation conducted by the University of Oregon after receiving information from a student at the Special Administrative Conference. This is a violation of a student’s right to Due Process.

Continued enrollment at the University of Oregon is a interest protected by constitutional rights

“A threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges, Calif. V. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994). A student has a protected property interest in his continued enrollment in the University, which is analogous to the property interest created by a professional license. A student also is entitled to the protection of his professional and personal reputation. As such, a student is entitled to procedural Due Process before his enrollment in the University of Oregon can be adversely affected.

Mathews v. Eldridge, 424 U.S. 319 (1976), established a three-part test by which to determine whether a hearing has consisted of procedures necessary to protect an individual’s right to Due Process.  Those three factors are:

1. The private interest that will be affected by the official action;

2. the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and

3. the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.

In Board of Regents v. Roth, 408 U.S. 564 (1972), the Supreme Court ruled that a teacher, who had been denied re-employment and was not a tenured professor, did not have a constitutional right to a statement of reasons and a hearing. The Court found that he did not have a constitutional right to these procedures because the State did not make any charge against him that might seriously damage his standing and associations in his community. The Court found that the State’s action did not impose on him a stigma that would foreclose his freedom to take advantage of other opportunities. However, the Court found that if the State’s decision not to rehire the teacher had been based on him being guilty of dishonesty or immorality, it would be a different case. The university discipline process is such a case.

The University of Oregon, as a governmental entity, attempts to make a finding against a student that imposes upon him a stigma as a sexual offender (in a case of a sexual assault allegation). This finding foreclose a student’s ability to take advantage of other opportunities. The sanctions that can be imposed will likely prevent a student from gaining admittance into any law school, any state bar, or other academic institutions. The effects of allegations against a student do not just impact his continued education at the University, but his livelihood and career. A decision made by the University of Oregon is based on questions of a student’s honesty and morality, which, as the Court held in Board of Regents v. Roth, triggers the need for notice and a fair and constitutionally protected hearing.

A University of Oregon Student has the right to cross-examine his accuser at a student conduct code discipline hearing

A student has a right to procedural Due Process, a component of which is cross-examination. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970). “An opportunity to confront and cross examine ‘is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy’”. Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013) (quoting Greene v. McElroy, 360 U.S. 474, 496-497 (1959).  Unfortunately, the issue of “perjurers” is often not possible to ascertain through the University of Oregon process because we have seen instances when the the complainant was never sworn to an oath.

The main  decision in student conduct sexual assault cases turn on questions of fact, thus requiring that a student have an opportunity to confront and cross-examine adverse witnesses, including the complainant. Students are actually warned by the University of Oregon that any attempt of his to contact a complainant, even by and through his agents, would be seen as a retaliatory action, thus denying his Due Process right to an investigation when his attorneys cannot conduct a student accuser.

The need for a student to have had the opportunity to confront and cross-examine is especially important because evidence typically consists of the testimony of individuals who might be motivated by malice, vindictiveness, intolerance, prejudice, or jealousy, or who might have a faulty memory, just as the court found in Ching. Often allegations are not reported for many months. This lapse of time may cause the complainant’s or other witnesses memory to be faulty, and a student will be able to more thoroughly establish this if he has the opportunity to cross-examine the complainant. Additionally, other motivations to lie about what transpired between an accuser and a student need to be explored under cross-examination.

In Ching, statements made by a student’s ex-husband regarding the validity of their marriage then impacted a student’s immigration status. The court found that a student had presented uncontested evidence to support her claim that her first marriage was valid, and that because of this, due process required a hearing with an opportunity to confront the witnesses against her. In many university student conduct cases, a student presents contested evidence, including polygraph results, witness reports, and an investigation regarding the complainant, which are not contested by the university. Just as the court found in Ching, because a student has presented uncontested evidence in this case to corroborate his claims, due process requires that he have the opportunity to confront the witnesses against him.

Don’t let the University of Oregon have all the control: Hire an attorney and take them and the Oregon Student Conduct Code to court

It’s important to remember that the process does not stop with the University. It’s a bias and unfair system that needs to be challenged in court.  Due process is a constitutional right.  The attorneys at Arnold Law may be able to assist you in this process as we have done for others. Call 541-338-9111 for more information or fill out the form to the left (or chat to the right).

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