Monday, December 8, 2008
Checkmate: Florida Case Holds That Central Florida's Disciplinary Rules Don't Confer On Students The Right To Question Witnesses In Disciplinary Hearings
The recent opinion of the District Court of Appeal of Florida, Fifth District, in Heiken v. University of Central Florida, 2008 WL 5100317 (Fla.App. 5 Dist. 2008), draws a distinction I can't quite endorse. Unfortunately, the opinion in Heiken is taciturn with regard to specifics, but it does tell us that Paul Heiken was disciplined after a disciplinary hearing at which an unsworn police report with hearsay allegations was admitted into evidence against him without the hearsay declarants appearing as witnesses.
Heiken subsequently appealed, claiming that admission of this hearsay evidence was improper under Florida Evidence Code Section 90.802. The court, however, found this argument to be without merit, citing several cases for the propositions that the rules of evidence do not apply to school disciplinary proceedings and that school disciplinary proceedings that afford students notice and the opportunity to be heard comport with due process requirements. And on this front, I don't feel like I know enough about the facts of the disciplinary proceeding to agree or disagree with this conclusion.
But I feel better situated to analyze Heiken's second ground for appeal, which was that Central Florida violated its own rules. According to those rules, at a disciplinary hearing, a "student may hear and question adverse witnesses who testify at the hearing." And according to Heiken, the District Court of Appeal of Florida, Second District, had found that the University of South Florida violated its similar rules, and a student's right to due process, based upon similar facts.
In that case, Morfit v. University of South Florida, 794 So.2d 655 (Fl.App. 2 Dist. 2001), a student was also disciplined after a disciplinary hearing at which a security officer's report with hearsay allegations was admitted into evidence against him without the hearsay declarants appearing as witnesses. And according to South Florida's rules, at a disciplinary hearing
"The student may hear and question adverse witnesses, except in cases of violent misconduct where the student may submit questions to the hearing officer for use in questioning adverse witnesses."
According to the Second District, those rules gave
"the student the right to question witnesses....Morfit was entitled to have the witnesses make their statements directly to the hearing officer, and he was entitled to question them....[T]he school's own code guaranteed Morfit this right. We must conclude that the school denied Morfit his right to due process, and, therefore, this decision must be reversed."
So, why did the Fifth District find that Central Florida did not similarly violate its rules in Heiken's disciplinary proceeding? According to the court,
"the language in [Central Florida]'s student conduct code is less broad. It provides that the “student may hear and question adverse witnesses who testify at the hearing.” (Emphasis added). We interpret this phrase to permit cross-examination only of those witnesses who are actually called at the hearing. Unlike the situation in Morfit, therefore, [Central Florida] did not violate its rule by using the report."
Frankly, I don't see how either set of rules gives students the right to question witnesses, but I also don't see how a rule giving students the right to "hear and question adverse witnesses" confers such a right while a rule giving students the right to "hear and question adverse witnesses who testify at the hearing" does not. That is why I can't quite endorse the Fifth Circuit's distinction. And the reason I merely say that I can't quite endorse the distinction is that I asked my wife about the distinction, and she said it made perfect sense to her. And to that, I would respond, "You may be right, I may be crazy."