Private college sent you to the dungeon? The Constitution won't help. Contract law might.



"Campus safety" officers on private college campuses exist in a legal gray zone, walking the line between "security guard" and "police officer" -- at times with all the power but none of the accountability of the latter. 

If a New York judge's ruling stands, security officers at Colgate University can't be held responsible for violating a student's constitutional rights when (according to a federal lawsuit) they confined him in the basement "holding cell" of a campus building in advance of a disciplinary hearing that was at least nine days away.

Abrar Faiaz claimed in a federal civil-rights suit that, when questioning him about a disciplinary complaint of dating violence, Colgate engaged in coercive interrogation techniques including depriving him of food and pressuring him to accept a one-way ticket home to Bangladesh. 

Even after the interrogation ended, the suit alleged, a Colgate administrator told Faiaz he would be "detained" in the basement of a residence hall for at least nine days pending a disciplinary hearing. (He ended up staying only a day-and-a-half before a sympathetic faculty sponsor took him home.)  

At a state institution, such behavior (if proven at trial) would violate multiple constitutional guarantees (due process and unlawful seizure, for starters), entitling the student to damages from any individual responsible for the infringement.

But because Colgate isn't a state institution, a federal magistrate judge threw out Faiaz's civil-rights claims last Monday.

In a Nov. 24 order, U.S. Magistrate Judge Andrew T. Baxter decided that Colgate public safety officers could not be held responsible under federal civil-rights law even if they did everything they're accused of, because Colgate police aren't state authorities:

The entire investigation was internal and led only to university disciplinary proceedings. The defendants did not exercise power possessed by virtue of state law and made possible only because they were clothed with the authority of state law.

The judge differentiated Colgate's police force from campus cops at Cornell University and at the University of Pennsylvania, where federal judges have decided that officers at private colleges who carry state arrest authority can be held liable for constitutional violations.

While Judge Baxter's ruling is a defensibly straightforward view of the law -- if you're not a state official, you're not liable for misusing state governmental authority -- it also leaves a troubling gap: A campus police officer can act like he has arrest powers, but not be accountable for exercising those nonexistent powers. 

The disciplinary context removed Faiaz's case from the clearer scenario in which, when campus police act like "real" police -- making traffic stops or arrests -- courts have held them to the same constitutional standards as city or county officers. 

The Indiana Supreme Court, for instance, has ruled that Butler University's police are subject to the same Fourth Amendment constraints as city or county police when conducting a traffic stop, because "[a] private entity is deemed a state actor when the state delegates to it a traditionally public function."

The Faiaz ruling doesn't leave students entirely defenseless. The judge allowed Faiaz to go forward on a state-law claim of false imprisonment -- rejecting the university's "did they SERIOUSLY say that" defense that Faiaz was not coercively imprisoned because he freely chose to stay. 

When given the "choice" between the basement and the one-way ticket to Bangladesh. 

Which Colgate's lawyers expansively described, in terms more suited to an announcer on "The Price is Right," as "a free trip to the comfort of his home and family." Judge Baxter wasn't buying. Colgate will have to answer to the claim.

Of broader significance to all students, the judge recognized that it's possible to hold a private college contractually responsible for the bargain struck when a student enrolls and is promised benefits set forth in the college's "bulletins, circulars, and regulations."

But apparently, nothing in the Colgate student handbook says, "We won't lock you in a basement," a buyer-beware tip for those choosing among colleges in the future. Because the judge dismissed Faiaz's breach-of-contract claim, finding that a student is owed no more than "substantial compliance" with the procedural formalities in a college's disciplinary code. Promises that a disciplinary system will be "fair" or produce "equal treatment" are just platitudes and are too indefinite to be contractually enforceable, the judge decided.

The Faiaz case, assuming it's not successfully appealed, is a cautionary tale for any student considering a private college. Along with asking how late the make-your-own-pizza bar is open and how many rock-climbing walls the gym has, prospective students and their families should ask demanding questions about what safeguards protect students against abuses by secretive police and disciplinary authorities. And if the answers aren't reassuring, take your business elsewhere.

Tagged: colgate, discipline, due process, Due Process-Discipline, faiaz, private college