Washington Court of Appeals Schools WSU on Student Disciplinary Procedure

Abdullatif Arishi, Appellant, v. Washington State University, Respondent (2016)

by Alexei Garick

If you’re applying to colleges for next fall and you’d like to retain your constitutional rights while on campus, you may want to opt for a public institution over a private one. All state universities and colleges in Washington must now provide students accused of sexual misconduct with an array of procedural safeguards. This is the result of a recent decision by the Washington State Court of Appeals in favor of a student expelled from Washington State University.

Abdullatif Arishi was one semester away from receiving a Ph.D. in education at WSU when he met a female on the adult dating website “Badoo” and the two began a relationship. Following a minor car accident in which Mr. Arishi’s female companion was driving his car, the police began investigating their relationship because, as it turned out, the female was 15 years old. Mr. Arishi was eventually charged with third-degree rape and molestation by the Whitman County prosecutor’s office.

In addition to facing a felony conviction and a possible jail sentence, Mr. Arishi was charged by WSU with violating the school’s standards of student conduct and its policy prohibiting discrimination, sexual harassment, and sexual misconduct. The university immediately suspended him and denied him access to campus. Per the university’s regulations, it notified Mr. Arishi that a student conduct hearing would be held. The hearing would be a “brief adjudication” pursuant to Revised Code of Washington Sections 34.05.482 through 34.05.491. Mr. Arishi’s requests for a full adjudicative proceeding were denied.

The university held a one-hour student conduct hearing. The Director of WSU’s Office of Student Standards and Accountability presented the charges. The rules of evidence were not applied. Only board members could question witnesses. Mr. Arishi had the opportunity to propose questions in writing to the board before the hearing, but the board would decide whether to ask them. Mr. Arishi had no opportunity to subpoena witnesses or documents. He had a lawyer present who could act as his advisor but could not address the board or witnesses. No cross-examination of the witnesses took place.

Mr. Arishi did not testify but provided a written statement saying that he met the complainant on an adult dating site; that the girl had misrepresented her age; and that he had believed that she was older.

The university called only two witnesses. The Director of WSU’s Office for Equal Opportunity testified about her investigation into the allegations. Her testimony amounted to her opinion, after reviewing the State’s criminal charging papers and interviewing the two police investigators, that the complainant was credible. The complainant refused to be interviewed by the university’s investigator, and she was not called to testify at the hearing.

The second witness was Detective Dow. He testified to his interview of the complainant. When asked by the board if she seemed mature, he testified that “[t]he face looks young. She’s, I guess, fully physically developed, she doesn’t have young body in terms of, but her face does look—I don’t know. how do you describe that?”

Following the hearing the university expelled Mr. Arishi, having found that, while the complainant had registered on the dating website as a 19-year-old, the circumstances were such that once Mr. Arishi had met her face-to-face, he knew that she was too young. His appeals were denied by the university and the superior court. Mr. Arishi, unable to obtain admission to any other graduate program in the U.S. to complete his doctoral studies, lost his student visa and was forced to return to Saudi Arabia.

Mr. Arishi sought further appellate review. He argued, among other things, that the university engaged in an unlawful procedure or decision-making process and erroneously interpreted or applied the law. The Washington Court of Appeals, Division Three, agreed and vacated the university’s findings.

The court held that where a student is facing expulsion, or is accused of sexual misconduct that would amount to a felony, the only proper decision-making process is the full adjudication procedure outlined in the Washington Administrative Code. While the WAC does allow agencies to handle some decision-making processes through a brief adjudicative procedure, it requires the agency to adopt a rule identifying which categories of matters can be handled by that type of process. To WSU’s credit, it had adopted a rule specifying student conduct proceedings as one of the categories that could be handled by brief adjudication. But there was a problem with WSU’s placing all student conduct hearings in the brief adjudication procedure category: the very statute that gave them the ability to designate matters for brief adjudication forbids the use of that truncated procedure when the issues and interests in a controversy warrant use of the full adjudication procedures.

In looking at past U.S. Supreme Court due process decisions, the court found that an issue may warrant full adjudication where the nature of disputed facts and the character of the relevant evidence make the trial-like elements of full adjudication valuable safeguards against the risk of an erroneous deprivation. Private interests may warrant full adjudication where the severity of a deprivation, its length, resulting stigma, or its impact on a person’s life or liberty justify the additional safeguards for the individual affected.

Brief adjudication was an inadequate process given the issues and interests in this case. Only Mr. Arishi and the complainant had first-hand knowledge of the dealings between them. Thus, veracity and credibility were critical. The safeguards of the subpoena power, oral testimony, and cross-examination were thus necessary and all were unavailable in the brief adjudication process.

The interests at stake involved the risk of severe hardship. Mr. Arishi risked the loss of financial and personal investment in three years of doctoral education. (He was only a semester away from graduation, and a sexual-assault explusion by WSU would likely prevent his transferring to complete the program elsewhere.) He also risked damage to personal reputation and the loss of his student visa. With all that on the line, the brief adjudication procedure would not be adequate. Without the protections of confrontation, cross-examination, the ability to subpoena witnesses, and effective legal representation, confidence in the hearing’s result was undermined.

I was glad to see the court acknowledge the serious interests that are at stake when a university seeks to punish a student accused of sexual misconduct. I was also encouraged that the court acknowledged the importance to the accused of a full adversarial hearing with representation by a lawyer. However, since the decision applies only to State agencies and universities, its implications for private colleges and universities remain to be seen.

At the moment, only the University of Washington and eleven other schools in the state provide full adjudication proceedings. The vast majority of state schools in Washington provide something less and now must amend their procedures to better ensure fair results.