Washington Appellate Court Outlines Minimum Requirements for University Disciplinary Hearings in Reversing Dismissal of Former WSU Football Player’s Procedural Due Process Claim

Jan 15, 2021

By Tori Harrison, of Waller Lansden Dortch & Davis, LLP

In October 2017, Washington State University football player Zaire Webb was arrested – but never charged – for shoplifting several items, including home drug testing kits, from a Walmart in Pullman, Washington. This incident led to his immediate dismissal from the WSU football team and the loss of his athletic scholarship. Head Coach Mike Leach claimed that Webb’s actions violated one or more of his four core rules for the Cougars’ football program: (1) do not steal, (2) do not use drugs, (3) do not hit women, and (4) do not do anything to hurt the team.

After his dismissal, Webb filed an appeal of his athletic financial aid cancellation with the Athletic Award Appeal Committee. Notably, the appeals committee was comprised of the Assistant Director of Undergraduate Admissions, the Senior Financial Aid Advisor, and the Associate Dean of Students. The committee did not record the hearing, and Webb testified alone on his behalf. The committee then instructed Webb to leave and heard testimony from three athletic department representatives, including the Director of Football Operations. The committee subsequently conferred and concluded that Coach Leach was justified in dismissing Webb from the team and canceling his financial aid. The committee never provided Webb with a written decision of its findings.

While the trial court dismissed Webb’s procedural due process claims, the appellate court reversed this decision, finding that “Webb had a legitimate claim of entitlement to his multi-year athletic scholarship” and his procedural due process right was violated in pursuit of this claim. In reversing the trial court’s order, the appellate court stated that the committee’s procedures deprived Webb of a meaningful opportunity to be heard because “Webb was not permitted to hear or respond to adverse witnesses” or even call his own witnesses. In addition, the appellate court took issue with the fact that the hearing was not recorded, and the committee was comprised of WSU officers who could potentially be biased in reviewing the decision of an influential head coach. The Court did not signal that any one of these issues was dispositive but concluded that, in the aggregate, the hearing’s procedures violated Webb’s procedural due process rights.

In reversing the trial court’s dismissal of Webb’s due process claim, the Court referenced and reaffirmed its decision in Conard v. University of Washington, 62 Wn. App. 664, 814 P.2d 1242 (1991), rev’d on other grounds, 119 Wn.2d 519, 834 P.2d 17 (1992), for the procedural steps that students are entitled to during this type of proceeding. Under this precedent, a student has a right to “(1) receive a written copy of any information on which the nonrenewal recommendation is based, (2) present and rebut evidence, (3) have the hearing conducted by an objective decision maker, (4) be represented by counsel, (5) have a record made of the hearing for review purposes, and (6) receive a written decision from the hearing board setting forth its determination of contested facts and the basis for its decision.”

In addition to the due process ruling, the appellate court also concluded that the doctrines of quasi-judicial immunity or qualified immunity did not shield the committee members from liability. The Court based its decision on the hearing’s procedural deficiencies noted in its due process analysis and the inherent issues in allowing committee members to resolve a dispute between a prominent co-worker and a student-athlete. In denying immunity to the committee members, the Court specifically noted that (1) Webb was not permitted to hear and rebut evidence, (2) no record was kept, and (3) the committee did not provide Webb with a written decision.

The Court upheld the dismissals of Webb’s tortious interference claim against Coach Leach, and the negligence claim against all of the defendants.

It is important to note that the Washington Appellate Court is drawing a hard line here about the minimum acceptable requirements for school disciplinary hearings and the high price that institutions will pay for not following these procedures. Failure to follow the checklist of procedures outlined by the Court might implicate not only a student’s constitutional due process rights but also preclude the university, and its employees, from insulating their actions from liability on immunity grounds. It will be interesting to keep an eye on this suit and any future determinations on the merits of these issues.