Did Washington State’s Robert Barber get due process before he was expelled?

Months before Robert Barber was scheduled to graduate from Washington State, just one class from a criminal-justice degree, the fifth-year senior defensive tackle from American Samoa was expelled for allegedly assaulting another student at a party July 23.

Barber’s expulsion by the University Conduct Board on Sept. 7 came before the Pullman Police recommended assault charges against Barber, whom police allege gave a male WSU student a concussion. The Whitman County prosecutor’s office has yet to decide if Barber will be charged.

Barber appealed his expulsion, and it was reduced to a suspension, effective Friday and lasting through July 2017.

The situation leaves Barber’s education and football career in limbo and has cast a spotlight on WSU’s student conduct discipline process, which critics call unfair. An independent expert said WSU’s system, while giving students less protection than they would get at the University of Washington, does afford WSU students due-process rights similar to those at many colleges, though certain protections are lacking.

Two statewide Asian Pacific-Islander advocacy groups allege WSU’s student conduct board denied Barber adequate due process rights and have urged WSU President Kirk Schulz to grant Barber a full adjudicatory hearing.

“We are concerned that WSU’s student conduct processes are flawed,” said Diane Narasaki, co-chair of the Asian Pacific Islander Coalition’s (APIC) King County Chapter. Her group, along with the Washington State Commission on Asian Pacific American Affairs, met with Schulz this month.

“We’re not asking for preferential treatment for student-athletes,” Narasaki said. “We’re asking for fair process for all students.”

Even though the University Appeals board reduced Barber’s sanction to a suspension — which, WSU administrators say, means it’s no longer eligible for presidential review — he has filed an appeal to the president on grounds his case should be eligible for presidential review because it originally involved expulsion.

Schulz declined to comment for this story. WSU, citing federal student privacy laws, would not comment on Barber’s case and Barber was not made available for comment.

As of Thursday afternoon, Schulz has not announced the commencement of any adjudicatory proceedings. Thus, Barber will begin serving his suspension Friday, though sources say, he has hired an attorney and intends to explore his legal options.

RELATED: WSU Conduct Board has come under fire before

Another WSU defensive lineman, Toso “T.J.” Fehoko, whom police allege broke the jaw of another student at the July party, also was expelled by WSU’s University Conduct Board. The redshirt freshman submitted an appeal to the University Appeals Board last week and is awaiting a decision.

The two Asian-Pacific Islander advocacy groups alleged racial profiling and have urged Schulz to personally review Barber’s case and convene a formal adjudicatory hearing “as a matter of justice.” Had Barber been a Husky instead of a Cougar, they say, he would have those rights as a student facing expulsion or suspension.

UW vs. WSU in matter of due process rights

The vast majority of the 2,500 to 3,000 student conduct cases filed annually at WSU never make it to the Conduct Board stage and are resolved by informal mediation with a conduct officer, said Adam Jussel, director of WSU’s Office of Student Conduct.

But in more serious cases such as Barber’s, where the conduct officer recommends expulsion or suspension, an accused student is called for a hearing before the university’s Conduct Board, and that’s where WSU’s processes differ noticeably from those at the University of Washington.

At WSU, students facing possible expulsion have their case heard before a conduct board whose members include staff, faculty and students from a pool appointed by WSU’s Vice President of Student Affairs.

The proceeding is considered a brief administrative hearing and does not follow legal procedures or rules of evidence that govern courts of law. The evidentiary standard is a “preponderance of evidence,” meaning the board bases its decision on whether it is more likely than not that the accused student committed the infraction in question.

Hearsay evidence is admissible when appropriate. Accused students cannot directly question witnesses, but they can suggest questions in writing to the conduct board chair, who chooses what questions to ask.

Accused students generally have a week to prepare for a conduct-board hearing. They represent themselves, but can bring an adviser. That adviser can be an attorney but cannot present the case for the student. When Barber went before the conduct board last month to defend himself against allegations of reckless endangerment and abuse of others, he was accompanied by Antonio Huffman, WSU’s director of football operations who has no legal background.

At the University of Washington, a student facing suspension or expulsion can request a hearing before the UW Faculty Appeals Board. The board holds formal adjudicatory hearings that follow rules and procedures that attorneys say are similar to those in superior court.

UW students are entitled full representation by an attorney. UW also operates on the preponderance-of-evidence standard, but the attorney for the accused student can cross-examine witnesses and argue the case for the client.

Those advocating for Barber say UW’s process is much fairer.

“In cases where suspension or expulsion is at issue, WSU’s due process protections should be the same as those afforded students at the University of Washington,” said Arne Hedeen, a Seattle-based attorney and a member of WSU’s Foundation Trustees who attended APIC’s Oct. 7 meeting with Schulz.

What constitutes fair due process?

Student conduct procedures vary widely at colleges around the country, according to Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, a Philadelphia-based nonprofit that advocates for individual rights at universities.

At The Seattle Times’ request, Harris reviewed UW’s and WSU’s student conduct procedures, analyzing the due-process rights each school allows its students.

She concluded that WSU “certainly appears to afford students more due process than we see at a lot of universities,” Harris said.

However, though WSU gives students adequate time to prepare for a hearing, clearly details charges against students and provides a hearing process — all of which are not guaranteed at some universities — “within that, there are some questions,” Harris said.

Her concerns included WSU’s practice of not allowing students representation by counsel, the cross-examination limitations, the absence of any rule allowing either party to request a board member’s disqualification on grounds of bias, and the fact that expulsion can be sanctioned by majority vote instead of unanimous decision.

“One of the important things is the ability to challenge the impartiality of fact-finders, because you want people who are going to give both sides a fair shake,” Harris said.

Her group also takes issue with schools not allowing accused students the right to active legal counsel in conduct proceedings, Harris said.

By comparison, Harris notes that UW’s Faculty Appeals Board process “is one of the most formal hearing procedures” offered by any university nationally.

“It’s very comprehensive,” Harris said. “It’s as close to a legal proceeding that I’ve seen.”

Many universities, WSU included, say they want students to present their case because the process is meant to be an educational proceeding, not a legal one.

“Our goal is to provide educational intervention for students that’s developmental and supportive,” said Melynda Huskey, WSU’s interim vice president of student affairs, who oversees the student-conduct office. “Many things that would be appropriate and suitable in a court wouldn’t be suitable for an educational hearing.”

That’s the reason universities frequently conduct their procedures independent of any investigation by civil authorities.

“We don’t need to wait until the criminal process is resolved,” Huskey said, speaking theoretically. “You could be found responsible for violating the standards of conduct and found not guilty for a criminal offense.”

Student-rights advocates say this approach makes sense in academic cases but can be problematic for criminal violations.

“When it comes to something that would constitute a crime, it’s difficult to say that 19-year-olds should have to defend themselves without an attorney,” Harris said. “For one thing, anything they say in these proceedings can be used against them in a court of law, and it can be dangerous to have them advocate for themselves in this way.”

Also, in cases involving possible suspension or expulsion where a student stands to lose his or her education, “there’s a serious property right at stake,” said Ryan Pauley, a Seattle-based personal-injury lawyer who’s also an adviser for one of WSU’s fraternities.

Added Harris, “When you have an expulsion for assault on your transcript, your ability to transfer or get a job may be compromised. The degree of process afforded by a university needs to reflect the charges. It should not be a one-size-fits-all process where you’re tried for plagiarism or sexual assault in the same way.”

The landscape

WSU’s student affairs administrators say they believe their student conduct processes are adequate and just, and point to a 12 percent repeat-offender rate as an indication the process works.

Huskey says WSU’s student conduct process is similar to that of 11 of the Pac-12 schools, with UW being the outlier. But The Seattle Times’ informal study of the student conduct processes at Pac-12 institutions and the public four-year colleges in Washington showed WSU’s process is more similar to in-state public colleges than the Pac-12 schools.

The in-state exception, of course, is UW, which has a conduct process that provides by far the most robust due-process rights to students in the state of Washington and in the Pac-12.

Eastern Washington, Central Washington and Western Washington all prevent students from questioning witnesses directly. Like WSU, EWU and WWU allow students to have attorneys as advisers but insist that students represent themselves in conduct proceedings. Students at CWU are allowed full representation by legal counsel, while EWU and WWU allow students to challenge conduct board members for bias.

The five public universities in the state of Washington, and all but one Pac-12 institution use the “preponderance of evidence” standard in conduct proceedings. Stanford, notably, cites in its procedures that students accused of conduct violations have the right to “be considered innocent until found guilty beyond a reasonable doubt.” At Oregon, the standard of evidence increases to “clear and convincing” in cases involving expulsion.

In the Pac-12, at least five schools including UW allow accused students full legal representation throughout conduct proceedings, and a sixth — USC — gives accused students the right to an attorney in cases involving suspension or expulsion. Two others ask that students present the bulk of their case, but allow attorneys to present opening and closing statements and ask questions of the accused.

At least seven Pac-12 schools including UW allow accused students to call and confront witnesses directly, and eight schools including UW give accused students the ability to request disqualification of any member of the conduct board on grounds of bias.

WSU does not allow for any of those rights in its conduct proceedings.

Where does this leave Barber?

As Barber begins his suspension, his advocates maintain that he has been unfairly treated by a flawed WSU conduct process and stress they’re not asking for special treatment.

“What I want is fairness and just process,” said Jack Thompson, WSU’s star quarterback from 1975-78 who was known as the “Throwin’ Samoan,” and was one of the Asian-Pacific Islander community leaders who signed the APIC letter addressed to Schulz.

“These young men are getting skewered,” Thompson said. “If there’s a violent crime and it’s obvious that the people are just and telling the story correctly, and there’s credibility going both ways, kick his (butt) off the team and put him in jail. I don’t care if he plays for UW or WSU; I don’t want that. If you’re bad, you’re gone.

“But I want a just system that would give you rights whether you’re Samoan or black or what.

“I don’t care, as long as it’s a fair system.”