Higher Education, Law & Principles

Expert endorses better due-process rights for Oklahoma students

October 17, 2023

Ray Carter

During a legislative study this week, a national expert urged state lawmakers to pass legislation to significantly bolster the due-process rights of students at Oklahoma colleges and universities, warning that the processes used by many schools cannot survive judicial scrutiny.

“We should all agree that a student’s right to attend a university they’ve been admitted to should only be compromised if they’ve been found responsible for serious misconduct after fair hearings that include meaningful protections,” said Tyler Coward, senior legislative counsel for the Foundation for Individual Rights and Expression (FIRE). “And, unfortunately, all too often that does not happen on college campuses.”

In the last 10 years he noted that hundreds of lawsuits have been filed against universities for alleged violations of students’ due-process rights. He said courts have sided with students in around 250 of those lawsuits so far.

In many cases nationwide, Coward said colleges have used processes that violate students’ basic rights when accused of wrongdoing that can result in expulsion, particularly in cases where a student is accused of sexual wrongdoing.

At many colleges, he said a “single investigator” model has been used in which one person does all the investigating and makes a recommendation regarding guilt and recommends the associated punishment. He said courts have often ruled against schools that use the single-investigator model.

That process does not involve live hearings or allow accused students the opportunity to have their accusers cross-examined, he noted.

Officials from Oklahoma colleges present at the study acknowledged that state universities have used the single-investigator model in the past, but said it is rarer today.

State Rep. Chad Caldwell, R-Enid, requested the study and filed legislation this year to bolster due-process rights for students attending Oklahoma college campuses.

House Bill 2073, by Caldwell and state Sen. Julie Daniels, would have created the “Student and Administration Equality Act.”

The legislation would have required Oklahoma colleges and universities to maintain an administrative file of all disciplinary proceedings that includes all evidence related to an alleged violation, including exculpatory evidence.

The legislation would have applied to any proceeding that could result in expulsion or a student being suspended for 10 days or more.

The bill would have guaranteed that accused students have the right to a live hearing with an attorney or other advocate present with the student’s attorney given the right to fully participate in the proceedings. HB 2073 defined “fully participate” to mean “the opportunity to be present, make opening and closing statements, examine and cross-examine witnesses, and provide the accuser or accused student or student organization with support, guidance, and advice.”

Students would also be guaranteed reasonable “continuing access to the administrative file and the ability to make copies of all evidence or documents in the file” beginning at least seven business days prior to any disciplinary hearing under the bill.

The legislation also mandated that proceedings begin with an express presumption of student innocence.

HB 2073 also mandated that students found guilty of a violation be provided an appeals process.

Coward praised HB 2073, calling it a “very good bill.” He said Louisiana and Arkansas have passed similar laws in the past year, and that other states have laws in place providing greater due-process protections for college students in North Carolina, Arizona, Florida, and North Dakota.

He said it is not enough to allow students to have an attorney. Coward said the student’s attorney must also be allowed to take an active role in the student’s defense, as would be allowed under HB 2073.

“A lot of universities will say, ‘Hey, we have the right to have an attorney,’” Coward said. “In a lot of cases, that’s already required under federal law. But federal law permits universities to allow a student attorney, if they choose to have one, to be what we call a potted plant. You can have an attorney, but he or she just has to sit there and stay silent. They can’t say anything. And having an attorney actively participate on one’s behalf is a critically important protection.”

Under the system in place at many colleges, an accused student must effectively represent himself or herself. Coward noted the old adage that a lawyer who has himself for a client “is a fool.”

“We’re requiring students to be their own lawyer in these cases,” Coward said.

Coward said only 25% of institutions reviewed by FIRE express the presumption of innocence at the start of proceedings and said some schools mandate that a student who declines to testify should be assumed guilty, even though statements made to the school can be used against the student in court.

He also noted that some colleges have limited an accused student’s access to case files.

“They will tell students, ‘Okay, here is the evidence we have against you. You can go into this room. You can’t take notes. You can’t make photocopies,’” Coward said.

At some schools in the past, he said universities only shared all evidence that would be used against a student during the proceeding—meaning the institution did not share exculpatory evidence with the accused student since school officials did not plan to present that material.

Coward said the due-process policies in place at the University of Oklahoma, Oklahoma State University, and the University of Central Oklahoma rate better on FIRE’s independent evaluation than those at many colleges. When FIRE did a national report on due-process rights at 53 colleges and universities nationwide, 44 institutions received a D or F.

Although the three Oklahoma schools were not included in that report, Coward said two of the three Oklahoma colleges would have received a C and the other a B.

However, he noted that shows all three universities have room to improve and urged lawmakers to place greater student safeguards in state law.

HB 2073 was assigned to the House Higher Education and CareerTech Committee during the 2023 session, but was never granted a hearing. State Rep. Anthony Moore, R-Clinton, chairs the committee and has the authority to deny a hearing to any bill assigned to the committee.