A Double-Edged Sword: Federal Abstention in the Student Disciplinary Hearing Context
As higher education institutions struggle to implement the Department of Education’s ever-expanding rules governing sexual violence on campus, many student respondents involved in disciplinary proceedings are returning fire by seeking court-issued injunctions aimed at halting institutions’ processes. The increasing frequency of these lawsuits is driving a rapid expansion in the case law surrounding so-called “respondent suits.” One particular area of recent expansion implicates courts’ analyses of how and whether they should involve themselves in public institutions’ adjudications.
The District Court for the Eastern District of Kentucky recently declined to exercise jurisdiction to review the constitutionality of a Title IX disciplinary hearing on the grounds that its review would represent impermissible federal interference in a state judicial proceeding pursuant to Younger abstention, which counsels against federal court interference with pending state judicial proceedings absent extraordinary circumstances. While this result may have been a short-term victory, institutions should be wary of the unforeseen consequences of designating their internal processes as state “quasi-criminal” proceedings.
The relevant background facts in John Doe v. Hazard et al., No. 5:15-cv-300-JMH, 2016 WL 208304 (E.D. Ky. Jan. 15, 2016) are as follows: An unidentified complainant contacted the University of Kentucky’s Office of Student Conduct (“OSC”), alleging that plaintiff John Doe (a student at the university) had engaged in certain sexual activities with Student A, a fellow student at UK. The university initiated a student disciplinary proceeding against Doe for alleged violations of the UK Policy on Sexual Assault, Stalking, and Relationship Violence. A hearing panel found that Doe had violated the student Code of Conduct, but this finding was reversed upon appeal to the University Appeals Board (“UAB”) because of various due process violations. OSC convened a second hearing, which also resulted in a finding of a violation – but the UAB again reversed the hearing board’s decision, again on due process grounds. Three days before the third scheduled hearing, plaintiff Doe filed an action in federal court seeking to enjoin UK from proceeding with the disciplinary process. Doe argued that the university’s policies and procedures governing sexual misconduct hearings were constitutionally flawed.
The Honorable Joseph M. Hood held that the court was precluded from adjudicating the plaintiff’s complaint seeking to enjoin the hearing because each of the Younger abstention factors articulated by the Supreme Court were present: (1) there is an ongoing state judicial proceeding; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity in the state proceedings to raise constitutional issues. See Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) (articulating factors to be used in applying Younger abstention in the context of state administrative proceedings).
Central to its analysis of the first prong, the court found that the UK disciplinary proceeding was similar enough to a state criminal prosecution to bring it into the purview of Younger because the accused plaintiff had: (1) notice of the charges, (2) a hearing before an independent fact-finding panel, (3) the assistance of an attorney or advisor, (4) an opportunity to cross-examine witnesses, and (5) the opportunity to call witnesses and present relevant evidence to advocate a defense. Moreover, the consequences for a finding of a violation would represent a deprivation for the accused; possible sanctions would include suspension or expulsion from UK. Finally, the accused would be permitted an appeal to an independent tribunal. Because of these factors, the court held that the hearing was “quasi-criminal” and “quasi-judicial” in nature and that Younger precluded the federal court’s involvement.
In Hazard, the court’s finding that UK’s internal disciplinary proceedings were tantamount to state criminal proceedings was supported with analogous authority from outside the higher education context, but other federal courts deciding whether to enjoin student disciplinary proceedings have reached the same conclusion under Younger. See, e.g., Sanchez v. Arizona Bd. of Regents, No. CV-15-01591-PHX-JAT, 2015 WL 6956288, at *3 (D. Ariz. Nov. 10, 2015) (citing the “trial-like” procedures incorporated by Arizona State University’s disciplinary system).
The “victory” in this case, i.e, the abstention of the federal court in an action seeking to enjoin disciplinary proceedings, may represent a mixed blessing for colleges and universities. In the short term, plaintiffs are increasingly seeking injunctive relief (including temporary restraining orders) as a tool to challenge universities’ judicial processes. Challenging these actions on Younger abstention grounds may be a mechanism for public institutions to avoid this litigation and retain the independence of the internal judicial process.
However, recasting internal institutional proceedings as “state” proceedings may have unforeseen negative consequences for public colleges and universities, as well as the potential to impact how courts view similar proceedings at private institutions. Traditional judicial deference to the academy is already a hotly contested concept. If internal institutional proceedings are tantamount to state proceedings, this may ultimately open the door to more judicial review, not less, as well as a bevy of state and federal rules governing procedure, rights, remedies and appeals.
Saul Ewing will continue to monitor this developing area of the law. If you have any questions regarding your institution’s disciplinary processes or related matters, the Saul Ewing Higher Education Practice would be pleased to assist you.