Arishi v. WSU:
Division III of the Court of Appeals issued an opinion on December 1 providing guidance on the administrative process for student discipline in Arishi v. Washington State University.1 While the decision is not binding on the Court’s other divisions, it is an interesting read for anyone involved in student disciplinary actions.
In the spring of 2014, Abdullatif Arishi was a 40-year-old Ph.D. graduate student at WSU. He came to the attention of the police when a 15-year-old girl who was driving his car rear-ended another car. Arishi was a passenger in the car at the time.
After the details of his alleged relationship with the girl became known to the police, Arishi was charged with third-degree rape and molestation of the girl.2 The charges were based on sexual contact with someone under the age of consent (which is 16 years of age). Arishi pleaded not guilty to the charges and asserted as a defense that “he reasonably believed the alleged victim to be [at least 16] based upon declarations as to age by the alleged victim.”3
WSU’s Administrative Process
After his arrest, Arishi was charged with violating WSU’s student conduct standards and its Policy Prohibiting Discrimination, Sexual Harassment, and Sexual Misconduct. He was suspended from attending school and denied access to campus, effective immediately.4
WSU is one of 39 Washington colleges and universities that have adopted administrative regulations governing student conduct proceedings that are published in the Washington Administrative Code.5 Under WSU’s code, student conduct proceedings are treated as “brief adjudications pursuant to RCW 34.05.482 through 34.05.491.”6
The WSU student conduct standards include an appeal procedure that directs the appeals board, president or president’s designee to “make any inquiries necessary to ascertain whether the proceeding must be converted to a formal adjudicative hearing under the Administrative Procedure Act.”7 Arishi requested a full adjudication, which was denied.8 At oral argument, WSU’s lawyer was asked if WSU ever found that a disciplinary action required a full adjudication; to her knowledge it never had.9
The Arishi decision noted that WSU’s brief adjudication process in this case consisted of a one-hour hearing where “the rules of evidence were not applied, only board members could question witnesses, proposed student questions had to be submitted in writing to a board member who would decide whether or not to ask them, and Mr. Arishi had no opportunity to subpoena witnesses or documents.” 10
Arishi and his lawyer were present at the hearing, but under the student conduct rules the lawyer could only act as an advisor and could not address witnesses or the conduct board.11 The individual who investigated the case for WSU and the detective who interviewed the alleged victim testified at the hearing. The investigator had not spoken with the victim or been able to question Arishi, so her office relied on the assessment of the police.12
Administrative Procedure Act Requirements
The Arishi decision is based on the Washington Administrative Procedure Act, RCW ch. 34.05 (APA), not on constitutional due process requirements. The following statement is the crux of the Court of Appeals’ holding, finding WSU’s hearing process to be inadequate under the APA:
The APA provides for only two types of adjudication: a presumptive full adjudicative process that requires a hearing with some procedural guarantees, and a simplified process that does not. The APA does not authorize agencies to adopt processes that fall somewhere in between. While this does not prevent agencies from offering more procedural protections than are required by the simplified process, it does mean that to determine whether full adjudication is warranted, the alternatives weighed are statutory brief adjudication and full adjudication, not some in-between process that an agency is willing to make available.
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