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According to this article in the New York Post:

the Obama administration, which in 2011 issued a “Dear Colleague” letter that detailed certain disciplinary processes universities must use to adjudicate sexual assault complaints. These processes lowered the standard for finding a student guilty. They encouraged colleges to keep students who hadn’t been found guilty away from their accusers. They made it harder for accusers to defend themselves by banning direct cross-examination of accusers and they allowed accusers to appeal not-guilty decisions.

Emphasis mine

This surprised me (I let out an audible "what the...") because what is described above seems like a clear breach of due process, guaranteed by the Fifth Amendment.

This prompted me to read the actual letter, found here; however, I could not find any mention of appealing a not-guilty verdict, which—I think—is not allowed by the Double Jeopardy clause, also in the Fifth Amendment.

Where are the laws that affirm what is bolded in the quote above?

Edit

This is the actual letter: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

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  • So you're asking if the reporter just made that up? – user6726 Feb 14 '17 at 17:42
  • @user6726, I am asking what laws corroborate the reporter's claim. – Daniel Feb 14 '17 at 17:45
  • That letter does not at all suggest anything about discipline (it's about trans-gender and self-identification): however, all general letters start with "Dear Colleague". Have you verified that this is the only possible letter? – user6726 Feb 14 '17 at 18:35
  • I suggest that you have the wrong letter: www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf – user6726 Feb 14 '17 at 18:39
  • See for example "OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing" – user6726 Feb 14 '17 at 18:42
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The Fifth and Sixth Amendments are about civil and criminal court proceedings. They do not apply to a university's internal disciplinary procedures, which are the subject of the Dear Colleague letter.

Note for example the text of the Fifth Amendment:

... or be deprived of life, liberty, or property, without due process of law.

A university's disciplinary procedures do not deprive anyone of their life, liberty, or property. Typically, they only decide whether to suspend or expel the person as a student at the university, or apply other academic punishments (failing grades, marks on transcript, etc).

I don't think there needs to be any law "affirming" this. Rather, there is simply no law that requires universities to use Fifth / Sixth amendment standards in their internal disciplinary procedures.

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    University people may have a property interest in e.g. having their job, being enrolled as student and so on. I suggest looking at detenuring case law, because universities are not actually free of the concept "due process". They do have wider latitude and the standards are lower. Doing the process correctly is at the heart of contemporary academic bureaucracy. – user6726 Feb 14 '17 at 18:00
  • @user6726: As I understand it, tenure invoves a contract specifying that a particular process must be followed in order to terminate employment. Due process is followed only insofar as the contract requires that it be followed; it's nothing to do with the employee's constitutional rights, as far as I know (except that they have the right to sue to enforce the contract). Non-tenured employees have contracts that don't call for due process and thus are not legally entitled to any. – Nate Eldredge Feb 14 '17 at 20:18
  • I don't know where students stand in this. It could be that they have a right to a particular form of due process before expulsion only because their agreement with the university (in the student handbook and so on) specifies that they have such a right. One could imagine a university whose policies included no such rights, where a student could be expelled by the administration at any time for any reason, or for no reason. The government might not want to give federal funding to such a university; but I don't think it would be unconstitutional. – Nate Eldredge Feb 14 '17 at 20:20
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    Depends on whether it's state or private. Due process is also owed per the 14th Am. See sog.unc.edu/file/5656/download?token=6rdyXdf9 for discussion of students and due process. – user6726 Feb 14 '17 at 21:23
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    Hmm, but the confrontation clause is in the Sixth Amendment, which is explicitly limited to criminal prosecutions. How would one argue that it ought to cover an administrative proceeding? – Nate Eldredge Feb 14 '17 at 22:42
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This is an old question I stumbled on but I think Nate Eldredge's post is misleading. Actually he gives two quite different answers why the Amendments should not apply (fyi, the confrontation issue you mention would be covered by the 6th not 5th amendment, though double jeopardy falls under the latter.)

The first given answer is that the proceeding is administrative,

"The Fifth and Sixth Amendments are about civil and criminal court proceedings. They do not apply to a university's internal disciplinary procedures, which are the subject of the Dear Colleague letter."

and second is that none of "life, liberty, or property" is implicated:

"A university's disciplinary procedures do not deprive anyone of their life, liberty, or property. Typically, they only decide whether to suspend or expel the person as a student at the university, or apply other academic punishments (failing grades, marks on transcript, etc)."

It doesn't really matter, though, since both are wrong as stated, the second egregiously so. As to the first, due process has for decades been held to apply to administrative proceedings, not just crim/civil trials. Generally the level of protection is lower, just as the due process protections in a civil trial are generally lower than in a criminal trial. You can look up Supreme Court cases like Goldberg v Kelly and Matthew v Eldridge to start learning more. Generally the protections do include a right of confrontation.

Second, "life, liberty, or property" are certainly implicated when someone is expelled or suspended. These are abstract terms; you cannot hope to understand them literally, and must look to how they have been interpreted in case law. Think of analogous situations to see how crazy the proposition is. Could someone be kicked out of the military by his superior, with the only reason offered being "I kicked him out because I was bored"? Clear due process issue, once you see how the Court has defined "life, liberty or property." In this particular context, look up Goss v Lopez, requiring due process when public high school suspends a student, or Perry v Sindermann for due process rights in a university tenureship case.

So if confrontation, at least, is required, are these colleges all guilty of due process violations? Well, these due process requirements will only bind public universities, since the amendments are only binding on the federal/state governments. That is the real reason due process rights can be violated by most universities--they don't exist, at least when the university is private. They certainly exist when the university is public, but frankly I don't know enough about the Dear Colleague letter in question to say if/how it has been challenged by accused students at public universities.

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    The question is explicitly about law as applicable to statements made in the letter, which you then say you don't know enough about. Either you can answer the question actually asked, or this response is merely extended commentary on why you disagree with an answer. – Nij Oct 14 '17 at 4:17
  • The military example seems irrelevant. There are regulations governing the discharge of service members that do not allow for capricious dismissal by a superior, not least because it makes no administrative sense whatsoever to endow officers with that power. Therefore the question of what legal rights might be implicated by such a dismissal would never come up. – phoog Oct 14 '17 at 21:06
  • @Nij You are incorrect, I gave complete answers to the case of private universities (no constitutional rights implicated because they are private, rather than completely wrong reasons given in the accepted answer) and public universities (they are in fact implicated). I stated that I do not know enough about the Letter to answer how it has been litigated by students in public universities, which is not even a question posed directly by op. – Hasse1987 Oct 15 '17 at 0:48
  • @phoog No, because regulations protect the service members does not mean that constitutional rights would not come up. Before those regs existed, or if they are abrogated, the constitutional right is a remedy. If the soldier believes the military is misapplying those regulations (eg what if the ALJ also dismisses him capriciously), he can pursue a constitutional remedy in federal court. etc. What you are saying makes no more sense than saying that because state constitutions protect free speech, the constitutional right to free speech "would never come up." – Hasse1987 Oct 15 '17 at 0:55
  • But the example you gave was not about misapplied regulations. It was about someone doing something he had no power to do. An officer can't discharge a subordinate any more than the president can fire a judge. – phoog Oct 15 '17 at 3:33

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