Colleges Ignore Due Process in the Time of COVID-19

Nov. 10, 2020 By Andrew Miltenberg

The COVID-19 pandemic is causing a demise of due process rights on college campuses, and higher education administrators should be ashamed of themselves for depriving students of basic justice. Let’s stipulate upfront: COVID-19 is a life and death matter and pretending otherwise puts students, faculty and staff at risk. Further, students who disregard safety measures should face disciplinary hearings. COVID-19 has crippled our sense of community, destroyed lives, families and entire social economic systems, but that is not an excuse to ignore the law.

What institutions of higher education are doing today is nothing short of abusing the basic rights we expect as Americans. The misinformation and lack of understanding of school policies is detrimental, and it has destroyed reason and sowed confusion at our colleges and universities. Our secondary education is awash with communication issues, suspensions, loss of housing and disciplinary proceedings. Due to the utter failure of our academic institutions to carefully plan, this fiasco, months in the making, is unnecessary.

And who is Exhibit A for this academic disaster? None other than Notre Dame President Rev. John I. Jenkins, who demanded student compliance at the risk of suspension and then caved to President Trump’s whims by choosing not to socially distance or wear a mask at the White House, thereby putting everyone he came into contact with at risk.

In the wake of last weekend’s football celebration, Rev. Jenkins is introducing stricter guidelines which restrict any student who does not take a COVID-19 test from registering for classes next semester. While no one disputes that mass gatherings are irresponsible during a national pandemic, the President of Notre Dame has no moral authority when it comes to safe, responsible behavior, and his latest restrictions on students are hypocritical and a direction violation of students’ due process rights.

Another example of the ridiculous decision-making ignoring due process: Northeastern University not only suspends students for COVID-19 violations, but also keeps their tuition. That’s an absurd proposition which is akin to outright theft rather than a due process proceeding where all rights are respected, even if the outcome is, in fact, suspension.

College and universities had ample time to design rules and parameters for the safety of the students. Instead, like COVID-19 itself, campuses have young people earnestly trying to comply and inadvertently failing. The lack of planning has pitted students against each other, such that a mere suggestion of a student being exposed results in significant investigations and sanctions, which permanently damages the academic career of students.

There are legitimate ways under the law to pursue academic discipline. However, schools are choosing not to respect the fundamental rights of students. I currently represent over a dozen students at a number of schools who have unknowingly violated COVID-19 policies and were summarily dismissed from school. One example of a summary suspension, without an investigation or hearing, is a student entering the restroom when it already exceeded its limit. Are students expected to look under doors and into shower stalls? That would be a violation under yet another part of the Code of Conduct. Or, schools permanently marking a transcript of an otherwise exceptional candidate for medical school for lifting their mask to take a sip of a smoothie. Or, another student taking part in making a Tik Tok video while socially distanced.

Colleges and universities are following the same discredited path they charted when it comes to sexual assault on campuses. Due process rights are regularly trampled since the Obama Administration changed the rules on Title IX enforcement. Certainly, victims of sexual assault on campus had too often been ignored or worse, so the Administration was right to insist on more serious attention be paid to the issue. But school administrators wildly overreached with disastrous results for those accused who have little legal protection on campus.

Since the issuance of the Obama Administration’s 2011 policy directive “Dear Colleague Letter”, there has been a marked increase in the number of colleges and universities under investigation by the Department of Education’s Office of Civil Rights for Title IX violations, and an increasing number of students have been the subject of sexual misconduct complaints adjudicated in school disciplinary proceedings. There has also been an explosion of litigation challenging the results of these school disciplinary proceedings that too often are unfair, lack a regard for due process, and result in life altering consequences.

Fortunately, the rule of law may soon replace the arbitrary process that has in fact been encouraged by the Department of Education. Courts throughout the United States are now ruling against universities in Title IX lawsuits.

No doubt, the same will occur regarding these COVID-19 kangaroo courts. Excluding the students who make incredibly poor choices, such as having social gatherings and refusing to wear a mask, let’s discuss students who mistakenly wander off a walking path, go into a restroom, or momentarily remove their face covering. To the college administrators, “Do as I say, not as I do” as so outrageously demonstrated by Rev. Jenkins — that certainly is no way to set an example, and perhaps more importantly, is no way to educate our young people about fairness, equity and their rights under the law.

With offices in New York and Boston, Andrew Miltenberg specializes in Title IX and due process matters. He is currently engaged in several groundbreaking Title IX cases, as well as handling COVID-19 related matters at colleges and universities.