By Gary Chester, Senior Writer
Many of the cases summarized in this publication reflect the challenges that universities face in trying to afford both parties due process of law in disciplinary hearings for sexual harassment under Title IX. But the decision in Williams v. Sonnentag, No. 1:21-cv-02757, (D. Colo. 2021), demonstrates that administrators need to follow the prescribed procedure in every type of disciplinary case.
The Facts
Kevin Williams, Jr. is a 22-year-old University of Northern Colorado graduate student and football player. The university suspended Williams after discovering a loaded pistol in his unsecured, unattended backpack in the team’s locker room on August 12, 2021. According to Williams, “the last time he had seen the weapon was about a week after July 4, 2021, when he used it for recreational shooting practice, and…he did not realize it was missing until he was notified on August 12, 2021 that it had been found in the locker room.”
At a hearing before the Dean of Students, Dr. Colleen Sonnentag, Williams said he had a permit to carry a concealed weapon because of his “high-risk work environment with at-risk youth” in his home state of Nebraska. He said that he had completed a course on gun safety and had written an essay on gun safety.
Sonnentag found that Williams had committed a “Deadly Weapons Violation” under the University’s Student Code of Conduct (“the BEAR Code”) and suspended him through the end of the spring semester of 2022.
Williams appealed, claiming the outcome was too harsh because his conduct was unintentional. The appeal readers agreed and remanded the matter to Dean Sonnentag for consideration of two suggested lesser sanctions, including an additional gun safety essay.
The Dean did not lessen the penalty, though she did require Williams to write a more focused gun storage and safety essay. Sonnentag reasoned that in five similar cases, each student was suspended for no fewer than two semesters. She wrote that while each case “may have different facts, maintaining fundamental fairness in the student conduct process is reliant upon consistency…”
Williams subsequently filed an action for injunctive relief against Sonnentag and the Board of Trustees of the University. Williams alleged that he was denied substantive and procedural due process.
The Legal Analysis
The court noted that the U.S. Supreme Court has set forth the minimal due process requirements for students subject to short suspensions not exceeding ten days (Goss v. Lopez, 419 U.S. 565, 584 (1975)), but not for longer suspensions.
As to procedural due process, the court discussed the due process afforded to students in the BEAR Code, including the right of the appeal readers to reverse the original resolution, affirm it, or remand the matter to the Dean for further consideration.
The court found that the BEAR Code did not give the Dean authority to reject the conclusions of the appeal readers. The court also found that the plain language of the BEAR Code “does not compel the conclusion that when appeal readers ‘remand’ a case, rather than ‘reversing’ it, the Dean may reject the appeal readers’ findings or conclusions.”
The court stated that Dean Sonnentag was free to consider the appeal readers’ recommendations but was not free to re-consider their conclusions; she was supposed to consider the lesser sanctions that were recommended and to “fashion a new outcome that was less severe than the one she had originally imposed.”
As to substantive due process, the court found that Sonnentag’s decision on remand was arbitrary and capricious because she mischaracterized Williams’ case as similar to previous cases. In those cases, however, the original decision was either not appealed or was affirmed by the appeals readers. Here, the appeals readers did not affirm the initial decision.
The court held that Dean Sonnentag violated Williams’ substantive rights by ignoring the appeals readers’ recommendations, which the court characterized as “tantamount to a reversal of that [original] sanction.”
The Ruling
Having demonstrated a “substantial likelihood of success on the merits,” Williams was also required to show that he will suffer “irreparable harm” if the injunction were denied. Defendants argued that Williams would not suffer irreparable harm because he was suspended and not expelled, and that Williams could take courses at another school during the suspension. Williams argued that a “suspended for conduct” notation on his transcript would harm his chances of obtaining educational or professional opportunities.
The court held that a delay in Williams’ education and a notation of the suspension on his academic record constitute irreparable harm. The court further held that the harm to Williams outweighs the University’s interest in campus safety because the appeal readers found that Williams, as a football player, is a campus leader who does not pose further risk to fellow students.
The court issued an injunction and ordered Dean Sonnentag to render a decision that considers both the appeal readers’ determination that the original decision was too harsh and that Williams had already been suspended for most of the fall semester.
The Takeaway
- Administrators should review their school’s applicable code of conduct before they participate in disciplinary hearings.
- Students should review their school’s applicable code of conduct before they engage in extreme acts such as bringing deadly weapons to campus.
