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What happened to your rights?

Jeevan Subbiah | Tuesday, January 27, 2009

Last year on Sept. 20th, 37 Notre Dame students were arrested at an off campus party in a private residence at 702 E. Colfax Ave, including Notre Dame football players Will Yeatman and Mike Golic Jr. Based on various accounts appearing in the press, there appear to be serious allegations of police misconduct, including unlawful entry, illegally obtained evidence and mistreatment and taunting of these students.

One of the central issues emerging in wake of the arrests is what fundamental due process rights do Notre Dame students have under these circumstances? Are these fundamental rights protected by provisions in du Lac, the student handbook? For example, if the police illegally obtained evidence during this raid, would the University be able to use such tainted evidence in a disciplinary hearing even though it would otherwise be inadmissible in court under the “exclusionary rule?” What stops the police from repeatedly violating student’s rights to obtain evidence if they know the University will use it?

Public universities are obliged by law to grant students 14th Amendment liberty and property due process rights. The United States Supreme Court has ruled that public colleges cannot expel students without proceedings that provide at least minimal due process (Dixon v. Alabama State Board of Education, 1961). The 1975 Supreme Court case Goss v. Lopez, ruled that students in public universities must be given notice and a hearing at a minimum before being suspended. However, the Supreme Court has not given students the right to be represented by lawyers in hearings for suspensions or to cross examine witnesses and produce evidence. Universities are not required to follow criminal trial procedural requirements in a disciplinary hearing. But some states have added student protections, such as laws allowing lawyers into student discipline hearings. Georgia ruled that all student hearings must be open and that disciplinary hearings are not educational records under The Family Educational Rights and Privacy Act (“FERPA”). Yet Louisiana and Oklahoma had contradictory court decisions on the same matter.

Private universities such as Notre Dame are not required by law to guarantee these same 14th Amendment liberty and property due process rights. They are obliged to adhere to their contractual agreement with students and therefore must follow the disciplinary procedures spelled out in their student handbooks and judicial codes. The lack of guaranteed due process rights at private schools makes the issue of what is written in the du Lac Student Handbook that much more important. Students should compare du Lac’s protections, such as the burden of proof for dismissal, or the procedures for witnesses and evidence against the protections guaranteed in the handbooks of other universities.

The 2006 Duke University Lacrosse case brought the issue of student due process rights at a private university into the national spotlight. Bias against the students was exposed in the media, police and university disciplinary system. The 2007 president of the Duke Student Government, Elliott Wolf, wrote an article “Dude, Where’re My Rights?” detailing the removal of many student rights from Duke’s Judicial code over a nine-year period. Student rights eliminated included the need to find probable cause by a judicial officer, the right to remain silent at a hearing with no inference of guilt, the right to an open hearing if FERPA rights were waived, the right to confront witnesses and the exclusion of evidence obtained illegally through unlawful search and seizure.

It would be interesting to see if similar erosions of student rights have occurred in the du Lac student handbook. Repercussions of the Duke Lacrosse case include lawsuits against Duke University and the city of Durham for claims including harassment, deprivation of civil rights, and breach of contract.

The Duke Lacrosse case due process issues are well detailed in “The Torch,” a publication defending student rights, and in a blog titled Durham-in-Wonderland by Professor KC Johnson. In the June 4, 2007 issue of “The Torch,” Robert Shibley wrote that Elliott Wolf sent a March 29, 2000 memorandum to Duke’s Associate Dean of Students and Director of Judicial Affairs arguing that Duke should not “pursue judicial action against a student based on evidence collected by law enforcement officers that was illegally obtained.” For example, is Notre Dame considering using illegally obtained evidence against those arrested?

Notre Dame students and their parents pay roughly $160,000 for their expensive education at Notre Dame. Though public school students are guaranteed greater due process rights, any private school can enhance student rights by including them in their student handbook. In this internet age, where a student’s reputation and future can be affected for life, the issue of what due process rights are guaranteed is very important. National and state laws on this topic seem to be evolving quickly.

The bottom line for many students, parents and alumni may be that Notre Dame should value and guarantee at least some basic and fundamental due process rights in the du Lac student handbook. Perhaps for Notre Dame, the bottom line may be that students, parents and alumni may start to make their final determination of what university to attend and financially support based on which universities afford basic due process protections for their students.

Jeevan Subbiah is a graduate from Notre Dame Law School (’98) and a

former Assistant Rector of Keenan Hall

(1996-1998). He can be contacted at

[email protected]

The views expressed in this column are those of the author and not

necessarily those of The Observer.