[guest post by JVW]
I’ve been fulminating for several years against campus student disciplinary tribunals, a nasty feature of contemporary campus life kicked into high gear by a notoriously awful edict from the Obama Administration delivered nearly thirteen years ago. Team Trump, under the solid leadership of Education Secretary Betsy DeVos, made some strides in rolling back some of the more obnoxious and unconstitutional aspects of the Obama order, but unsurprisingly Joe Biden has worked to once again establish the preeminence of the intersectionality hierarchy in higher education.
Yet within the past month two developments have emerged which will complicate the desires of authoritarian administrators to arbitrarily exact justice on their charges. The first story comes from Yale University, where a federal court has recently reinstated the defamation lawsuit brought by a student who was dismissed from the university based upon questionable charges. Stephen Carter, a professor of law at Yale, explains:
The case of Khan v. Yale University has traveled a winding road. (Full disclosure: Yale pays my salary.) Testimony given under oath in a courtroom is ordinarily privileged, meaning that the witness can’t be sued for defamation. The trial court dismissed Khan’s lawsuit on the ground that Yale’s tribunal should be treated like a court. On appeal, the Second Circuit asked the Connecticut Supreme Court whether testimony at a university disciplinary hearing was privileged. The justices said no. Thus the Second Circuit’s decision to reinstate the lawsuit could not have come as an entire surprise. What hardly anyone expected was that it would be so sweeping.
The judges quoted the Connecticut Supreme Court, which had concluded that Yale’s tribunal “is not a quasi-judicial proceeding because it lacked a significant number of procedural safeguards — e.g., an oath requirement, cross-examination, the ability to call witnesses, meaningful assistance of counsel, an adequate record for appeal — that in judicial proceedings ensure reliability and promote fundamental fairness.”
Moreover, the Connecticut court explained, part of what makes courts actually, well, courts is that when they decide whether to punish individuals, they’re adjudicating based on laws they themselves didn’t create. By contrast, the tribunal “creates and applies only” the “internal policies” of the university, and therefore “lacks the necessary components of public participation and approval to be considered quasi-judicial.”
In other words, if you want witnesses at disciplinary hearings to be protected from defamation suits, you’ll need to add layers of those “procedural safeguards” that judicial proceedings entail.
The second item refers to a lawsuit filed against Stanford University by the family of Katie Meyer, a dedicated student/athlete who took her own life in spring 2022 after learning that a student disciplinary tribunal would be determining if she would be punished for an altercation she had with a fellow student. Sports Illustrated has a terrific article about this which I believe is available to non-subscribers (I no longer subscribe, and I’m able to pull it up), and it’s certainly worth a read to understand some of the more nuanced problems that these tribunals can create:
The Meyers’ search for answers started on the day she died, as a handful of teammates and friends began to fill in [her parents] Steve and Gina. Katie had hidden an incident from her family for months. It started with a teammate alleging that she had received an unwanted kiss from a football player on Aug. 20, 2021. Then, according to court documents and confirmed in several interviews, eight days later, Katie happened by the football player while riding her bike through campus, and she spilled hot coffee on him. Katie, in her communications with Stanford’s Office of Community Standards (OCS), said she fell off her bike and that the spilled coffee was an accident—that she didn’t know the person it landed on. But according to a letter from Stanford’s disciplinary arm, the football player said she had intentionally poured it on his back. On Sept. 16, the OCS launched an investigation. Katie was informed the next day. The office interviewed her shortly afterward—and began talking to others as well.
[. . .]
In the wake of Katie’s death, Steve and Gina found communication from the school lacking. They say they had trouble accessing Katie’s records and were put off by the clinical tone of Stanford’s statements. But that disappointment paled in comparison to their shock over what they would learn about Stanford’s disciplinary process.
The article explains that Katie was a high-achiever both in the classroom and on the soccer pitch, and was thus rather tightly wound. She had wanted to attend Stanford Law School the next year where she could use her extra year of athletic eligibility from the lost COVID year to captain the Stanford Women’s Soccer team one more time, and try to replicate their 2019 NCAA Championship. By all accounts, she was devastated when she received word in early spring 2022 that she would face a disciplinary proceeding, six months after the incident had first been reported. Katie feared that this would derail her law school application. It won’t come as a surprise to any of you that Stanford’s OCS office doesn’t quite follow what we know as due process:
Stanford’s Office of Community Standards operates as the school’s disciplinary arm for most cases. It is run by administrative staff who investigate and prosecute cases, while a panel of faculty, students and staff sit in judgment.
The Meyers’ complaint against Stanford echoes many other criticisms of its disciplinary arm and the school’s pressure-cooker atmosphere. In 2019, the student newspaper, the Stanford Daily, reported that a psychiatric ward near campus admitted between one and three students a week. From ’19 to now, at least nine Stanford students have died by suicide.
Two independent analyses—from the Student Justice Project (2012), a group of Stanford students, parents and alumni, and the Foundation for Individual Rights in Education (’20)—found a host of problems with Stanford’s disciplinary system, including slow response times and poor communication.
“It’s a system that presumes guilt,” says Bob Ottilie, a lawyer and one of the SJP founders. After issuing his report, at first privately to Stanford, his group met with school administrators. Officials engaged, Ottilie says, for seven months. But, he adds, “Literally, nothing changed.” In May 2013, the SJP started publicizing the report. It hammered the OCS for failing to provide due process and said its officers used their positions to intimidate students. Stanford responded by criticizing the study as flawed. So the SJP produced a second report in ’13, this time including 24 testimonials from students. Each described trauma, depression, anxiety and more born from the disciplinary process.
The SJP offered recommendations—like free representation for the accused—but Ottilie says the school met them with “hostility.” Stanford does allow for trained, independent advisers called “judicial counselors” to assist students. The counselors can be faculty, staff or students, but are not professionals. Ottilie thinks the advocates should be able to operate more like lawyers.
The Meyer family alleges that Stanford should have known that Katie was intense, that she was under great stress regarding her future, and that the disciplinary procedure could easily send her over the edge. Katie had been in counseling through the university, and her family believes she was poorly advised:
Katie also described her assertiveness as demonized. A perfectionist, she had been terrified of making mistakes her entire life. No alcohol, no speeding tickets, no A- marks. “I have given everything to this school,” she wrote [in her journal]. “I love Stanford.”
On Nov. 12  she had met with Julie Sutcliffe, then the assistant director of sport psychology. Katie detailed elevating feelings of anxiety and depression, describing her mood as irritable, frustrated and down, according to Sutcliffe’s notes, referenced in the Meyers’ complaint against Stanford. Katie scheduled a follow-up for the next week but missed the appointment after oversleeping from exhaustion, according to the complaint. She also saw Francesco Dandekar, the university’s associate director of sport psychology. According to the lawsuit, on Nov. 22 she told him she “was experiencing increased depression symptoms associated with perceived failure and [she reported] suicidal ideations.” (Dandekar did not respond to a request for comment.)
Stanford’s policy is that conversations between its students and its psychologists are confidential. For confidentiality to be broken, there must be an imminent threat of harm to oneself or others. The judgment call would have fallen to Dandekar as to whether Katie had met that threshold and he should alert others at Stanford of her condition. Kim Dougherty, the Meyer family lawyer, says the family believes the situation merited reporting. “There should have been communication,” she says. “There are supposed to be flags within the system.”
The next day, the lawsuit says, Katie met again with Sutcliffe, describing “worsening anxiety and mood and increased depression” coinciding with her interactions with the OCS. The lawsuit also states that, at the same time, she was having trouble filling her prescription for an ADHD medication. Though it is uncertain whether Katie suffered from withdrawal symptoms from the drug, they can include feelings of depression and increased anxiety.
Thus, on the last day of February 2022 when Katie received formal notification from Stanford that she would be charged with a discipline violation, she immediately fell into despair, which the Meyer family believes Stanford should have anticipated:
After hanging up with her family on the evening of Feb. 28, 2022, Katie hopped on another FaceTime call, with [teammate Naomi] Girma. They talked about which classes both should take, with enrollment starting the next day. Shortly after 7 p.m., Katie paused abruptly. She said to Girma, “Oh my god. They’re charging me.”
Katie hung up and continued reading the email that had landed in her inbox from the OCS dean telling her that she would shortly be receiving a “formal written notice” from her office. The charge: “Violation of the Fundamental Standard by spilling hot coffee on another student.” The notice ran five pages and listed potential witnesses in her case (some of whom have been redacted from the version that became public through court proceedings). Katie also had access to a case documents folder. According to the notice the OCS sent her, the folder included interview notes from meetings with both her and the football player as well as other interview notes and pieces of evidence (like text exchanges between the football player’s mother and his coach). None of these documents are public.
[. . .]
The notice said that violating Stanford’s fundamental standard of behavior could result in “removal” from the university. Per university policy, the college senior’s degree was put on hold, meaning that she could not graduate until the matter was resolved. Having redshirted, she still had soccer eligibility left and could have continued as Stanford captain if she were accepted to its law school. Now both those things were threatened.
Six months had passed from the day Katie learned of the OCS complaint to the night she received that letter. In that time, communication from the OCS was sporadic. Hearing little, Katie considered the saga over, according to four others at Stanford who knew her well. Administrators sent the formal OCS charge on the last day before the university’s statute of limitations would have closed the case. It was sent after hours, when offices that could help Katie deal with any aftershocks (fear, anxiety, dark thoughts) were closed.
Naomi R. Shatz, a lawyer at Zalkind, Duncan & Bernstein, in Boston, who represents students in similar cases, says Stanford’s actions reflect “very common” problems in school disciplinary systems. Specifically, Shatz cites the length of the case and the lack of communication between officials and Katie. She wondered to SI why Stanford did not at least notify her during normal business hours. Difficult messages should be delivered face-to-face, she says. In-person meetings allow disciplinary officials to gauge student reaction while giving immediate referrals for any counseling, treatment or support options available. The notice directed Katie to the “on-call dean” as a support resource. But that’s it.
[. . .]
Often in the case of suicide, families spend decades searching for why. The Meyers think they have theirs. In some ways that helps. In others it makes it harder.
The Meyer family has amended its original lawsuit to remove six of the eight allegations, but the core contention that Stanford is responsible for a wrongful death remains. These things move at a glacial pace in the constipated California legal system, so the next court date is in March, for a “Case Management Conference” hearing.
Perhaps a large settlement against Stanford will strike a meaningful blow against the idea of university administrators running their own quasi-judicial arms with rules devised entirely by themselves and answerable to no one. Of course, Stanford is a phenomenally wealthy school, so they might just determine that wielding this sort of authority over their students is worth paying out a large settlement every now and again. But what has happened at Yale and Stanford ought to give pause to the higher education establishment and the Biden Administration and convince them to tread very carefully in these matters, though we have no reason to expect that it will.