Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process?

By Rubenfeld, Jed | Texas Law Review, November 1, 2017 | Go to article overview

Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process?


Rubenfeld, Jed, Texas Law Review


It's an absurd and astonishing fact about current constitutional law that it still hasn't answered, and can't answer, the most basic questions about privatization.

We know the ratio between American soldiers and American private military contractors in the Iraq war: one to one.1 We know the Central Intelligence Agency (CIA) used such contractors to interrogate-and in some cases apparently to torture-captives.2 But thirteen years after Abu Ghraib, we still don't know whether the contractors working there3 were "state actors."4

If a city privatized its entire police force, replacing it with private security contractors, existing Supreme Court case law suggests that the private officers would not be state actors, meaning they could arrest and search with constitutional abandon.5 I'm not saying courts would so hold. I assume they wouldn't. But current state action doctrine actually points to that Constitution-gutting conclusion.6

The privatization black hole at the heart of constitutional law is well known.7 "There is no accepted constitutional theory," as Professor Kimberly Brown puts it, "that prohibits Congress or the President from handing off significant swaths of discretionary governmental power to wholly private entities that operate beyond the purview of the Constitution."8 But the realworld effects of this black hole are often still missed.

Beginning in 2011, the federal government induced private colleges and universities all over the country to investigate, prosecute, adjudicate, and punish alleged law violations under Title IX of the Educational Amendments of 1972, conducting secretive trials according to specified procedures, including a government-dictated standard of proof.9 In other words, the government induced private institutions to do law enforcement on its behalf, a result achieved not through contract, but by threatening to strip those institutions of billions of dollars in federal funding.10 This too was a kind of privatization.11

The existence of state action in the new campus sexual assault trials should be obvious given that the government not only compelled schools to conduct them but mandated certain procedures for them.12 The question is whether these trials have been violating due process. But courts have refused to answer that question on the ground that private colleges and universities are not state actors-and therefore due process doesn't apply.13

This result is not entirely surprising. If courts did find state action, every Title IX sexual assault hearing at every private school in the country could have been affected.14 Findings of guilt might have to be revisited; expulsions might have to be vacated. District judges have excellent reasons to adhere to the no-state-action result.

Nevertheless, that result is wrong-and plainly so.

This conclusion will be opposed by Title IX activists, but the truth is it should be welcome to everyone who, like the author of this Article, backs stronger policies for, and punishments of, campus sexual assault. There's a reason the Constitution requires due process. No one is served by faulty, unreliable adjudication, and the campus trials conducted all over the country have been so unreliable-in some cases so incompetent, so Kafka-esque- they would almost be risible, if their effects on the lives of the people they touch, both alleged victims and alleged perpetrators alike, weren' t as potentially devastating as they are.

Part I summarizes the 2011 Department of Education "Dear Colleague" letter that brought about the new Title IX campus sexual assault trials. Part II shows why, under well-established state action doctrine, due process applies even at private schools to at least some parts of these Title IX trials. But Part II leaves important questions open-questions that can't be answered without confronting the more general problem of privatization in constitutional law. Part III derives principles that would solve that problem, and Part IV applies these principles, identifying the most serious potential due process violations in post-2011 campus sexual assault hearings. …

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