[00:00:01] Speaker 02:
Good morning, Your Honors.

[00:00:02] Speaker 02:
May it please the Court, I'm Jeremiah Hudson.

[00:00:04] Speaker 02:
I represent Appellant Chelsea Brooke Dudley, who's here today.

[00:00:08] Speaker 02:
I understand we have 15 minutes per side.

[00:00:10] Speaker 02:
I'd like to reserve four minutes for rebuttal.

[00:00:13] Speaker 00:
All right, as I said, I told counsel last time, that's your total time.

[00:00:16] Speaker 00:
We'll try to watch it.

[00:00:17] Speaker 00:
If we take you over, we'll have a little grace there.

[00:00:20] Speaker 02:
But watch your time.

[00:00:21] Speaker 02:
Thank you, Your Honor.

[00:00:22] Speaker 02:
I'll start with Interim Dean Roark's grade change and the subsequent degree revocation.

[00:00:29] Speaker 02:
On November 2nd, 2022, Interim Dean Rourke from Boise State University sent Ms.

[00:00:36] Speaker 02:
Dudley a letter informing her that he had concluded that she had engaged in misconduct and that as a result, he would be changing her final grade in her internship from a passing grade to a failing grade.

[00:00:51] Speaker 02:
Ms.

[00:00:51] Speaker 02:
Dudley had graduated six months prior.

[00:00:54] Speaker 02:
And interim Dean Rourke was not her professor of record, nor was he employed at the School of Social Work when she was a student there.

[00:01:03] Speaker 02:
As a result, the very next day, Ms.

[00:01:04] Speaker 02:
Dudley's degree was revoked by Mandy Nelson, who's a registrar and an appellee in this case.

[00:01:12] Speaker 02:
The practical reality is Ms.

[00:01:14] Speaker 02:
Dudley did not receive Dean Rourke's letter in the mail by the time her degree was revoked.

[00:01:21] Speaker 02:
She had no prior notice.

[00:01:23] Speaker 02:
and no opportunity to be heard.

[00:01:26] Speaker 02:
Six days later, Boise State University sent Ms.

[00:01:32] Speaker 02:
Dudley's revised transcripts to the Idaho Division of Occupational and Professional Licensing informing them that Dudley's degree had been revoked.

[00:01:42] Speaker 02:
Although there are a couple of exceptions that appellees had not asserted in this case, some form of hearing is required before an individual is finally deprived of a property interest.

[00:01:53] Speaker 02:
And that comes from Matthew versus Eldridge.

[00:01:55] Speaker 02:
But most every due process case, procedural due process case, states that.

[00:02:02] Speaker 04:
So, counsel, your client was granted a hearing.

[00:02:06] Speaker 04:
It may have come late in the perfect order of things, but she was granted a hearing.

[00:02:12] Speaker 04:
So what's the problem?

[00:02:15] Speaker 02:
Your honor, the problem is that she was deprived of her property interest, her degree, prior to receiving that hearing.

[00:02:22] Speaker 02:
OK.

[00:02:22] Speaker 04:
So if we go back and do the hearing again, what happens?

[00:02:26] Speaker 02:
Your Honor, we've alleged that the subsequent hearing was not sufficient to comply with your constitution.

[00:02:33] Speaker 04:
So your complaint is that even though she was granted a hearing at some point, that that hearing was inadequate?

[00:02:40] Speaker 04:
That's correct, Your Honor.

[00:02:41] Speaker 04:
In what respects?

[00:02:42] Speaker 04:
What is it, if you were to go back and we had a do-over, what is it that would happen the next time?

[00:02:46] Speaker 04:
What very specifically do you want out of a second hearing?

[00:02:51] Speaker 02:
Yes, Your Honor, what we think Ms.

[00:02:53] Speaker 02:
Dudley is entitled to under the Matthews Factors is

[00:02:57] Speaker 02:
is a neutral investigation.

[00:02:59] Speaker 02:
Part of the problem here was all of the allegations against Ms.

[00:03:03] Speaker 02:
Dudley in the subsequent process were derived from Interim Dean Newark's letter, almost verbatim.

[00:03:11] Speaker 02:
And so that's the first and foremost.

[00:03:14] Speaker 02:
Second, she's entitled to cross-examine witnesses against her.

[00:03:19] Speaker 04:
Now, I looked at sort of the order of proceeding

[00:03:24] Speaker 04:
here, and under what I saw, it appears that she was going to be given, this is the formal conduct hearing checklist, Exhibit B at ER 217, and it looks to me after the complainant's presentation of information that she can ask questions.

[00:03:40] Speaker 04:
She does have to direct them to the chairperson, and the chairperson can authorize or not authorize the questions.

[00:03:45] Speaker 04:
Is that not sufficient as cross-examination?

[00:03:47] Speaker 02:
Your Honor, she that certainly says that in that sheet that you just referenced, but the witnesses would not show up.

[00:03:56] Speaker 02:
Boise State's witnesses wouldn't show up.

[00:03:58] Speaker 04:
What witnesses?

[00:03:59] Speaker 04:
What witnesses did not show up?

[00:04:00] Speaker 02:
Mike Dixon from Idaho Department of Health and Welfare.

[00:04:03] Speaker 02:
And why didn't he show up?

[00:04:05] Speaker 02:
He, Ms.

[00:04:06] Speaker 02:
Dudley, asked him to show up and he said he would not show up unless he got subpoenaed.

[00:04:09] Speaker 00:
So my understanding of the record is that the university's case was simply presented on paper, right?

[00:04:15] Speaker 00:
Witness statements.

[00:04:16] Speaker 00:
So there was, there wouldn't be no ability to question.

[00:04:19] Speaker 02:
That's correct, Your Honor.

[00:04:20] Speaker 00:
Did you know that that was, or did,

[00:04:22] Speaker 00:
Did your client know that that was going to happen before the hearing in light of the document that Judge Bybee just read from?

[00:04:28] Speaker 02:
Yes, Your Honor.

[00:04:28] Speaker 02:
And we asked for the witnesses to show up.

[00:04:31] Speaker 02:
We asked for more state to produce.

[00:04:32] Speaker 00:
But did she know at the outset before the hearing started that the university planned to go forward and present no live witnesses but just present declarations?

[00:04:41] Speaker 02:
That is correct.

[00:04:42] Speaker 00:
And we did know that.

[00:04:42] Speaker 02:
All right.

[00:04:43] Speaker 02:
We brought that to the court's attention.

[00:04:44] Speaker 04:
And you're suggesting that this hearing cannot go forward without Dixon?

[00:04:49] Speaker 02:
Yes, Your Honor.

[00:04:50] Speaker 04:
And Boise State does or does not have subpoena authority?

[00:04:53] Speaker 04:
They did not have subpoena authority.

[00:04:54] Speaker 04:
If they don't have subpoena authority, then what is Boise State supposed to do?

[00:04:58] Speaker 02:
Well, Your Honor, Boise State was able to get an affidavit from Mr. Dixon.

[00:05:02] Speaker 02:
And so they had his cooperation.

[00:05:05] Speaker 02:
They didn't want him to show up.

[00:05:06] Speaker 02:
It's our position that they didn't want him to show up.

[00:05:08] Speaker 04:
OK.

[00:05:09] Speaker 04:
But if they don't have subpoena authority, can Boise State proceed without Mr. Dixon?

[00:05:14] Speaker 02:
No, they can't, Your Honor.

[00:05:15] Speaker 04:
Really?

[00:05:16] Speaker 04:
What are they supposed to do?

[00:05:18] Speaker 04:
This is an independent Idaho department that has said she has violated our rules.

[00:05:24] Speaker 04:
We have conducted a careful investigation.

[00:05:26] Speaker 04:
Here is the evidence that we have been provided.

[00:05:29] Speaker 04:
We did this thoroughly.

[00:05:30] Speaker 04:
And we have come to the conclusion without any question that she violated our rules and that we would have dismissed her at the time had we known it when she was an intern.

[00:05:40] Speaker 04:
So why can't Boise State act on that information?

[00:05:45] Speaker 02:
Your Honor, because Ms.

[00:05:46] Speaker 02:
Dudley has a side of the story that she is allowed to present.

[00:05:49] Speaker 02:
And the problem is they adopted Mr. Dixon's story without question.

[00:05:54] Speaker 02:
They didn't ask Ms.

[00:05:55] Speaker 02:
Dudley.

[00:05:56] Speaker 02:
They didn't inquire.

[00:05:57] Speaker 02:
They said, we're going to believe what Mr. Dixon said.

[00:05:59] Speaker 02:
And we don't care.

[00:06:02] Speaker 04:
And this has very, very serious consequences for an institution.

[00:06:06] Speaker 04:
So for example, if Boise State said, well, we can't act on this, it's quite possible that the Idaho Department of Health and Welfare would decide not to take Boise State students in the future.

[00:06:16] Speaker 04:
One, because they can't rely on them, and two, because the university is unwilling to discipline or respond to them in any way when there are complaints.

[00:06:25] Speaker 04:
So there are some very, very severe institutional consequences here if Boise State chooses to ignore what Mr. Dixon has told them.

[00:06:33] Speaker 04:
And they don't have any way of subpoenaing him.

[00:06:36] Speaker 04:
And they have been told that it is definitive.

[00:06:38] Speaker 04:
And he has provided them an affidavit.

[00:06:40] Speaker 04:
He's provided them with other written evidence.

[00:06:43] Speaker 04:
So why can't Boise State rely on that?

[00:06:46] Speaker 04:
Well, Your Honor, let me.

[00:06:48] Speaker 04:
I understand that you'd like to cross-examine him.

[00:06:50] Speaker 04:
And you do have the ability to cross-examine other people.

[00:06:55] Speaker 04:
But they're university administrators who are working off of what Mr. Dixon told them.

[00:06:59] Speaker 02:
Well, let me get to that point, Your Honor.

[00:07:01] Speaker 02:
Assistant Dean Law was the university administrator.

[00:07:05] Speaker 02:
She was the investigator.

[00:07:07] Speaker 02:
And we asked also to cross-examine her, to ask her questions about what was in her investigation report.

[00:07:15] Speaker 02:
And she refused.

[00:07:17] Speaker 02:
Ms.

[00:07:18] Speaker 02:
Dudley asked her prior to the hearing, and she said no, that would not provide additional information.

[00:07:25] Speaker 02:
There's a rule that Boise State says that if you're going to call a witness, they have to provide something that's not in the record.

[00:07:33] Speaker 02:
But Ms.

[00:07:34] Speaker 02:
Dudley asked Assistant Dean Law at the hearing,

[00:07:37] Speaker 02:
that Assistant Neen Law was at as the administrator, if she had testified and Assistant Neen Law said no, she is not here at the hearing as an investigator, but as the administrator.

[00:07:49] Speaker 02:
So she wouldn't even answer questions about her own investigation report, which essentially stated that Dudley did what they accused her of doing.

[00:07:57] Speaker 00:
I want to drill down on that a little bit, because as I read the cases, to the extent that they say that the ability to cross-examine is required, they do so in the context of there being, I think the phrase in some of the case law is a competing narrative.

[00:08:10] Speaker 00:
I mean, you can think of the sexual abuse on campus kind of cases, a he said, she said kind of a situation.

[00:08:18] Speaker 00:
I'm trying to figure out if that's this, because your client

[00:08:24] Speaker 00:
doesn't really admit, but also doesn't seem to dispute that perhaps she actually did access files beyond her own.

[00:08:30] Speaker 00:
And so is it really a disputed narrative?

[00:08:36] Speaker 02:
Yes, your honor.

[00:08:36] Speaker 02:
And the reason that is is because Boise State University alleged that Ms.

[00:08:41] Speaker 02:
Dudley violated policy 2020 section 4 AC, which is kind of the catch-all violation, you know, that she violated another university policy or law.

[00:08:54] Speaker 02:
Ms.

[00:08:54] Speaker 02:
Dudley alleged throughout that there was not another underlying policy or law that

[00:09:02] Speaker 02:
that she was ever presented with, that she violated.

[00:09:06] Speaker 00:
Okay, setting that aside, I want you to focus on the facts.

[00:09:09] Speaker 00:
Again, if we were to let this, if we were to reverse and say a new hearing has to be held and you get to cross-examine, the university witnesses at least, we'll put Dixon aside for a second, what is it that you would ask on cross-examination?

[00:09:23] Speaker 00:
What do you think you could get?

[00:09:24] Speaker 02:
We would ask, what precise university policy or law did you rely on to conclude that Ms.

[00:09:32] Speaker 02:
Dudley violated University Policy 2020, Section 4 AC?

[00:09:36] Speaker 00:
So you want to nail down exactly what rule they're going after?

[00:09:39] Speaker 00:
No facts?

[00:09:40] Speaker 02:
No, there are facts certainly that we would ask about.

[00:09:43] Speaker 02:
They've accused Ms.

[00:09:45] Speaker 02:
Dudley of searching through the system when Ms.

[00:09:48] Speaker 02:
Dudley denied that she searched through the database.

[00:09:52] Speaker 02:
What she said was that she looked up her own file and that she was instructed that she could do that.

[00:10:00] Speaker 04:
Did she have an opportunity to say that at the hearing?

[00:10:04] Speaker 04:
She did.

[00:10:05] Speaker 04:
Yes, Your Honor.

[00:10:07] Speaker 04:
And if she were to cross-examine law,

[00:10:10] Speaker 04:
about that, what would law answer?

[00:10:13] Speaker 04:
What could law possibly answer?

[00:10:15] Speaker 04:
We don't know, Your Honor.

[00:10:17] Speaker 04:
Well, 80 law doesn't know.

[00:10:19] Speaker 04:
Law can only rely on what Dixon has told her.

[00:10:23] Speaker 04:
And so she can say, well, I got this from Dixon.

[00:10:25] Speaker 04:
But that evidence is already in the record.

[00:10:28] Speaker 02:
Your Honor, I think that leads to a situation in which universities, particularly universities in situations like this, can rely on

[00:10:39] Speaker 02:
other entities, and I understand that this situation isn't going to replicate itself.

[00:10:45] Speaker 02:
overly often, but if they can rely on outside entities and then say, hey, we don't have subpoena power, we're just going to adopt what they say and come to the same conclusion on top of all that.

[00:10:58] Speaker 04:
You know, we actually do this all the time in this court.

[00:11:01] Speaker 04:
We rely on parallel actions in state bars, and we often don't question it.

[00:11:08] Speaker 04:
We will offer reciprocal punishment based on the finding of another entity.

[00:11:15] Speaker 02:
I assume, Your Honor, in those situations, there has been some due process that's been provided to the people.

[00:11:22] Speaker 04:
You had some due process here.

[00:11:24] Speaker 04:
So is there anything besides, were you limited in your time?

[00:11:27] Speaker 04:
The 25 minutes seems just extraordinarily narrow to me.

[00:11:31] Speaker 04:
Yes, 25 minutes.

[00:11:33] Speaker 02:
Did they hold you to the 25 minutes?

[00:11:36] Speaker 02:
Largely, they did.

[00:11:38] Speaker 02:
They said they'd give us a little time over.

[00:11:39] Speaker 02:
We asked for 45 minutes for an opening statement, 25 minutes to question each witness, and 45 minutes for a closing, and they denied that.

[00:11:47] Speaker 02:
They said that that just was excessive.

[00:11:50] Speaker 04:
And so aside from the time, the cross-examination that you've identified, the neutral investigation, is there anything else that you would ask for in a second hearing?

[00:12:01] Speaker 02:
Yes, Your Honor, there are a number of evidence that in the notice, it said that the allegation occurred on April 12 of 2022.

[00:12:12] Speaker 02:
We received no evidence establishing that we would.

[00:12:18] Speaker 02:
The unbiased investigation or neutral investigation is a pretty broad topic.

[00:12:23] Speaker 02:
And I have the specifics in the brief, but that includes things like not, you know, persuasively writing the brief in a way that says Dudley is guilty of what she's been accused of doing.

[00:12:37] Speaker 02:
And so, no, but beyond that,

[00:12:41] Speaker 02:
one of the biggest things is being provided the underlying policy or law that she allegedly violated and this was this was stated in a numerous in numerous letters and numerous communications what was stated your honor is

[00:12:56] Speaker 02:
from Mr. Dixon, and Boise State amended the complaint shortly before the hearing to only allege to take out references to the school's field manual, a violation of the school's field manual to the NASW code of ethics.

[00:13:12] Speaker 02:
And Mr. Dixon does not provide any policy.

[00:13:16] Speaker 02:
He says there's confidentiality standards that apply.

[00:13:19] Speaker 02:
It does not identify what those are and IDAPA.

[00:13:23] Speaker 02:
Idaho Administrative Procedure Act doesn't identify any of those.

[00:13:28] Speaker 02:
It says they apply to the conduct.

[00:13:29] Speaker 02:
And in that case, the Student Conduct Board just adopted, just believed what he said.

[00:13:34] Speaker 02:
He wasn't there to give a credibility opinion.

[00:13:37] Speaker 02:
They just believed what he said.

[00:13:38] Speaker 04:
I mean, this just doesn't feel like a particularly consequential argument.

[00:13:44] Speaker 04:
The idea of maintaining confidentiality of records that deal with child protective services and other things just seems so intuitive that it doesn't feel like it has to be written down in order to be enforced.

[00:13:57] Speaker 02:
Your honor, Ms.

[00:13:58] Speaker 02:
Dudley did not do what she is accused of doing, and that's her position.

[00:14:00] Speaker 04:
But that's a very, very different question than that she wouldn't know that she was violating an ID health and welfare policy or university rules or state rules or national ethics.

[00:14:17] Speaker 02:
Your Honor, there was not, if you look at those policies, there's nothing in them that reference what Ms.

[00:14:24] Speaker 02:
Dudley did, accessing her own file and potentially, possibly.

[00:14:30] Speaker 04:
That all depends on your, of the board believing that your client only accessed her own file and no one else's file.

[00:14:39] Speaker 04:
That's very different from saying, well, I don't know what the standards are.

[00:14:43] Speaker 02:
Well, Your Honor, there were no witnesses at Boise State for credibility to be determined.

[00:14:50] Speaker 02:
And so Ms.

[00:14:51] Speaker 02:
Dudley, she said she gave her testimony.

[00:14:55] Speaker 02:
And the Student Conduct Board had to rely on written statements of individuals.

[00:15:00] Speaker 02:
And they can't assess credibility based on that.

[00:15:04] Speaker 02:
And with that said, Your Honors, unless you have any more questions, I look like I'm out of time.

[00:15:09] Speaker 00:
We'll give you time for rebuttal.

[00:15:11] Speaker 02:
Thank you.

[00:15:23] Speaker 03:
Thank you.

[00:15:24] Speaker 03:
I may please record Mike Kelly for appellee-defendant Boise State University and the individual appellees who, at the time of the complaint, were also Boise State faculty, staff, and students.

[00:15:40] Speaker 03:
The appellees respectfully request, Your Honors, that this court affirm the lower court's decision to grant our motion to dismiss the plaintiff's complaint.

[00:15:52] Speaker 03:
I think the arguments we've heard this morning to date, at least, while important, adequate process is obviously a very important issue, I think we're putting the cart before the horse.

[00:16:05] Speaker 03:
In this instance, the linchpin of the plaintiff's legal argument is really whether she had a protective property right in her education, in her grade, and then the potential expulsion from the school.

[00:16:18] Speaker 04:
Council, let's set aside the grade, the transcript problem, focus on two things, both the degree and the expulsion.

[00:16:27] Speaker 04:
Surely the university is not contending that she doesn't have a due process right when she's going to be expelled from school.

[00:16:34] Speaker 04:
That's pretty well established, right?

[00:16:35] Speaker 04:
This is Goss versus Lopez, a whole series of cases involving school discipline.

[00:16:40] Speaker 04:
How can the university plausibly contest that she does not entitled to due process before she's expelled?

[00:16:46] Speaker 03:
Oh, she certainly has a due process right, Judge, but we're looking at three, or now two, because the third procedural due process claim was not pursued here, that she needs that property right protected by the Constitution to make this claim.

[00:17:06] Speaker 03:
ensure her causes of action.

[00:17:08] Speaker 04:
And so you're suggesting she has no right whatsoever to due process before she's expelled?

[00:17:14] Speaker 03:
Well, there's a difference between having the due process and having the procedural due process in the property right sense that she has some type of entitlement to her degree, her grade, and the expulsion issue.

[00:17:29] Speaker 00:
What is the difference?

[00:17:30] Speaker 00:
I'm not following that difference at all.

[00:17:35] Speaker 03:
As the Ninth Circuit has indicated in the Doe v. White case, we look at state-specific rules, law, and procedures to determine if somebody has a property right in higher education.

[00:17:50] Speaker 01:
So if we look at that, Idaho's state board policy, Roman numeral 3E1, it's couched in mandatory language.

[00:18:00] Speaker 01:
the university has to either deny or grant conferral of a degree upon completion of the program of instruction.

[00:18:08] Speaker 01:
So why doesn't that create a property right?

[00:18:13] Speaker 03:
All that does, Judge, is provide the universities with the policies and procedures to either convey or not convey that policy.

[00:18:23] Speaker 03:
If you turn it around, the

[00:18:28] Speaker 03:
Board policies also allow the universities to discipline, reprimand, or expel former students because of actions that they took while at the university.

[00:18:42] Speaker 01:
But a student or family pays for four years of tuition, completes the program requirements.

[00:18:50] Speaker 01:
You're supposed to, pursuant to this policy, grant the degree.

[00:18:54] Speaker 01:
How is that not a property right?

[00:18:56] Speaker 03:
Well, Judge, that's more of a contract issue.

[00:18:58] Speaker 03:
And again, the Idaho courts have never, ever, as far as K through 12 education, there is a constitutional section that provides for free education.

[00:19:15] Speaker 03:
There is no such constitutional statutory or case law

[00:19:21] Speaker 03:
requirement or procedure that gives that right to a person in higher education.

[00:19:30] Speaker 03:
They pay their tuition, they attend their classes, all with the idea that they're getting the education in exchange for that.

[00:19:39] Speaker 04:
You know, Counsel, I asked one of my clerks this morning to pull a diploma from Boise State University.

[00:19:43] Speaker 04:
I didn't see one in the record.

[00:19:45] Speaker 04:
So we had no trouble finding a diploma.

[00:19:49] Speaker 04:
It says, the Board of Trustees, by virtue of the authority vested in it by law,

[00:19:53] Speaker 04:
And upon recommendation of the university faculty does hereby confer upon so and so the degree of such with all of the rights and responsibilities pertaining thereto.

[00:20:03] Speaker 04:
That's a valuable piece of property.

[00:20:05] Speaker 04:
In fact, it's a mandatory step for certain kinds of licensing procedures.

[00:20:11] Speaker 04:
If you haven't got a JD, I suspect that you can't take the bar in Idaho.

[00:20:16] Speaker 04:
If you don't have certain kinds of college certifications,

[00:20:20] Speaker 04:
professional certifications, you can't go on and take the engineering degree or the nursing degree.

[00:20:27] Speaker 04:
So this is a very valuable piece of property.

[00:20:28] Speaker 04:
How can that not be a property right in that?

[00:20:31] Speaker 04:
We said there's a property right in driver's licenses.

[00:20:34] Speaker 03:
Well, Judge, again, we're looking at a very narrow, specific area of the law.

[00:20:39] Speaker 03:
And again, when we look at what the law is in Idaho, and again, confirmed by the Ninth Circuit and the Adobe White case, if there is no explicit

[00:20:51] Speaker 03:
State law or regulation that says that there is a property right in higher education, as Judge Nye has said, as Judge Windmill has said in that Duffin case, then it doesn't exist.

[00:21:06] Speaker 04:
Well, we've always said that it's not only dependent upon state law.

[00:21:12] Speaker 04:
It certainly can be created by state law, but there are also certain ways in which the state can treat it that will be deemed under the 14th Amendment to constitute a valuable property right.

[00:21:23] Speaker 04:
This is the new property.

[00:21:25] Speaker 03:
And again, Judge, Idaho law has not done that.

[00:21:29] Speaker 03:
And that was the crux of Judge Anaya's decision.

[00:21:34] Speaker 03:
And looking back to these other decisions having to do with higher education, that has always been, not always, because there's very few of them.

[00:21:42] Speaker 04:
I have questions about due process, but I believe that Judge Rickard has had a good question.

[00:21:45] Speaker 01:
So I was going to go to due process.

[00:21:46] Speaker 01:
So let's just assume for argument's sake

[00:21:48] Speaker 01:
You know, we find that there is a property right.

[00:21:51] Speaker 01:
You heard the other side, the hearing was allegedly inadequate, cross-examination was inadequate, time limitations.

[00:21:57] Speaker 01:
How do you respond to all that?

[00:22:02] Speaker 03:
Judge, I think when you look at the boys' state policy and procedure for due process for students, whether it's grades, whether it's revocation of a degree, whether it's suspension from school,

[00:22:17] Speaker 03:
The university, I think, does a pretty good job in their policies and procedures in going through that process, whether it be a grade, again, whether it be a suspension, whatever.

[00:22:32] Speaker 03:
They're not perfect.

[00:22:33] Speaker 03:
No process is perfect.

[00:22:36] Speaker 03:
But in this instance, it was more than adequate.

[00:22:39] Speaker 03:
Okay.

[00:22:39] Speaker 04:
Does she give an adequate opportunity to cross-examine?

[00:22:48] Speaker 04:
She, in this instance, Judge... Your procedures provide for cross-examination.

[00:22:55] Speaker 04:
It's not direct cross-examination, it's an indirect cross-examination, but it does provide for questions to be supplied to witnesses.

[00:23:03] Speaker 03:
And there's nothing to preclude her from bringing witnesses in.

[00:23:06] Speaker 04:
Okay.

[00:23:07] Speaker 04:
Is she entitled to talk to, ask questions of Dean Law, who declined to, apparently declined to testify for the university?

[00:23:17] Speaker 03:
Judge, I think that's a specific call for the moment.

[00:23:23] Speaker 03:
I mean, Dean Law took the position she was the investigator, so she wasn't going to testify.

[00:23:30] Speaker 04:
Well, that might explain why the university would not put her on, but was Miss Dudley entitled to ask her to come and testify.

[00:23:40] Speaker 04:
So this is a university-available witness.

[00:23:42] Speaker 04:
That's a very different problem than trying to force Mike Dixon in.

[00:23:49] Speaker 03:
All right.

[00:23:49] Speaker 03:
Well, I think then we get into evidentiary arguments.

[00:23:53] Speaker 03:
And that's why I think when you look at a process at a institute of higher learning or even high schools and school districts, the standard is a whole lot lower than it is if we're in a courtroom.

[00:24:07] Speaker 03:
going through evidentiary process.

[00:24:08] Speaker 04:
But this is a pretty serious proceeding.

[00:24:10] Speaker 04:
We're revoking a diploma.

[00:24:12] Speaker 04:
We are expelling her from school, which means she cannot come back and complete the diploma.

[00:24:16] Speaker 04:
So we're both taking away something that's been given in the past and preventing her from doing anything in the future about it.

[00:24:22] Speaker 04:
That's a pretty serious proceeding.

[00:24:25] Speaker 04:
I think maybe the thing that most concerns me was Boise State telling her that she should have 25 minutes.

[00:24:32] Speaker 04:
Counselor, we're going to chew up 30 minutes here just talking to the two of you.

[00:24:37] Speaker 04:
And 25 minutes is I'm sort of dumbfounded.

[00:24:43] Speaker 03:
Well, Judge, again, I presume that that's been in place for a while.

[00:24:48] Speaker 03:
It's an arbitrary number.

[00:24:49] Speaker 03:
I can't answer that.

[00:24:50] Speaker 04:
It does appear to be an arbitrary number.

[00:24:52] Speaker 04:
I'm not sure that it's actually provided for by the rules.

[00:24:55] Speaker 01:
So I heard that she was able to say, I access my own documents.

[00:24:59] Speaker 01:
Was she given an opportunity to say,

[00:25:01] Speaker 01:
I didn't access any other person's data?

[00:25:05] Speaker 03:
Yes.

[00:25:06] Speaker 03:
I think what she said was, I accessed my own file and there may have been hyperlinks to other people's files on my file.

[00:25:16] Speaker 03:
That was her explanation.

[00:25:18] Speaker 03:
But I think another key point, Judge, if we're looking at it from an evidentiary standpoint, is this was highlighted by Judge Nye also, that her file was off limits to her.

[00:25:33] Speaker 03:
But by admitting that she accessed her file,

[00:25:38] Speaker 03:
she violated the Department of Health and Welfare's rules.

[00:25:42] Speaker 03:
So again, that's an evidentiary issue, but nevertheless.

[00:25:47] Speaker 00:
I want to drill down on the cross-examination issue before we get out of time.

[00:25:51] Speaker 00:
Is it your position that she doesn't have a right to cross-examination in this context?

[00:25:55] Speaker 03:
No.

[00:25:56] Speaker 00:
She doesn't have a right.

[00:25:57] Speaker 03:
No, it's not my position that it.

[00:25:59] Speaker 00:
Oh, that's not your position.

[00:26:00] Speaker 03:
No, because it was spelled out.

[00:26:02] Speaker 00:
So if she has the right, is it your position that, so my understanding of how this went is that the university presented its evidence first, and it was all on paper.

[00:26:11] Speaker 00:
So there was three or four declarations from witnesses saying these are the facts relevant to this proceeding.

[00:26:18] Speaker 00:
Am I correct about that?

[00:26:19] Speaker 00:
That's how that went?

[00:26:20] Speaker 00:
Correct.

[00:26:20] Speaker 00:
OK.

[00:26:21] Speaker 00:
So if she has a right to cross-examination, how is that even possible in this context?

[00:26:27] Speaker 03:
Again, there was nothing to prevent her from calling any of these witnesses in person.

[00:26:31] Speaker 00:
That's not cross-examination.

[00:26:32] Speaker 00:
That's direct examination, if she's going to call them for her own case.

[00:26:36] Speaker 00:
So the university presents statements of evidence from witnesses in part of its case.

[00:26:41] Speaker 00:
And then your own procedures say she's going to have an opportunity to propose questions to the university's witnesses to push back on their case.

[00:26:49] Speaker 00:
How does she even get to do that?

[00:26:52] Speaker 03:
Well, in this instance, she couldn't judge.

[00:26:54] Speaker 00:
But then if we go back to you said she has a right, then it didn't happen at all.

[00:26:58] Speaker 00:
So how is that not a violation of her rights?

[00:27:02] Speaker 03:
Well, again, Judge, I go back to the argument that this is not a legal proceeding.

[00:27:07] Speaker 03:
This is a university policy procedure.

[00:27:09] Speaker 00:
No, I understand that, which is why my first question to you was, is it your position that she has no right to cross-examination in this proceeding?

[00:27:17] Speaker 00:
And you told me that is not your position.

[00:27:19] Speaker 00:
If that is not your position, and instead you think she does have some right to cross-examination in this kind of a proceeding, she didn't get it, period.

[00:27:27] Speaker 00:
She couldn't have because of how the university decided to present its case.

[00:27:31] Speaker 03:
Well, Judge, there's a difference between having the right and then procedurally not being able to do it in this instance because of the fact that these witnesses were all testifying via affidavit.

[00:27:43] Speaker 03:
So there is a distinction.

[00:27:45] Speaker 03:
She did not physically get it in this case.

[00:27:47] Speaker 03:
But again, we look at it, I think, from the standpoint that these university policies and procedures are run by school officials, not lawyers, not judges.

[00:28:00] Speaker 03:
the members of that student board, all volunteers, two of them are faculty, one is a staff member, and two are students, that I don't think that they could be held to the standard of a court in regard to- I mean, I understand that.

[00:28:18] Speaker 00:
So is there in the record any information about whether the university asked Mr. Dixon to show up at this hearing?

[00:28:27] Speaker 03:
I do not know if they did or not, Judge.

[00:28:28] Speaker 00:
Is there any evidence in this record to indicate whether the university asked Mr. Dixon any follow-up questions about the conclusions that he reached and why he reached them?

[00:28:38] Speaker 04:
There is none.

[00:28:40] Speaker 04:
So we don't have any transcripts of any telephone calls between Dixon and any university authority.

[00:28:44] Speaker 04:
So that might have been useful to be able to probe something like that.

[00:28:49] Speaker 03:
There should be emails between?

[00:28:51] Speaker 04:
Emails, yes.

[00:28:52] Speaker 04:
That would be a paper record.

[00:28:53] Speaker 04:
But I believe there's some evidence that there were phone calls as well.

[00:28:58] Speaker 04:
A dean law who declines to participate says she's not a witness, she's an investigator.

[00:29:03] Speaker 04:
She's an investigator.

[00:29:03] Speaker 04:
Why is she participating in the deliberations?

[00:29:07] Speaker 03:
As the... She's not a member of the board, right?

[00:29:11] Speaker 03:
She is not.

[00:29:12] Speaker 03:
She is not.

[00:29:13] Speaker 03:
She was an associate dean of students at the time.

[00:29:17] Speaker 03:
And when they're under their policies and regulations, rules and regulations, if there is not a named complaint,

[00:29:28] Speaker 03:
that the dean of students act as the complainant.

[00:29:31] Speaker 04:
OK, so was law the complainant?

[00:29:35] Speaker 04:
She was the... Or was it somebody else representing law?

[00:29:39] Speaker 03:
No, it was law representing the dean of students.

[00:29:42] Speaker 04:
OK, so law was the nominal... Correct.

[00:29:46] Speaker 04:
...complainant.

[00:29:47] Speaker 04:
So then why was the complainant allowed to sit in on the deliberations?

[00:29:53] Speaker 03:
I would assume it would be the same as if a victim is sitting in on a criminal trial, Judge.

[00:30:03] Speaker 03:
I don't know if that's a great analogy.

[00:30:04] Speaker 04:
No, law was allowed to sit in on the deliberations, or the deliberations of the board, not the proceeding.

[00:30:12] Speaker 04:
Why was she allowed to sit in with the decision makers while the decision is being made?

[00:30:16] Speaker 03:
I don't know, Judge.

[00:30:17] Speaker 03:
I don't know if that was part of the or a counter to the policies and procedures.

[00:30:21] Speaker 04:
It may not be reflected in any of the policies, but it feels intuitive that

[00:30:27] Speaker 04:
that a law who has made a judgment and is now asking another body to ratify that judgment, and is the complainant on behalf of the university, would be allowed to sit in on those negotiations.

[00:30:39] Speaker 04:
I understand this is an administrative proceeding.

[00:30:41] Speaker 04:
It is not a criminal trial.

[00:30:45] Speaker 04:
But it does feel a little funny that law would be allowed in.

[00:30:51] Speaker 03:
Again, Judge, I don't have an answer.

[00:30:52] Speaker 04:
She can supply additional testimony.

[00:30:55] Speaker 04:
We have no transcript of any of that.

[00:30:57] Speaker 04:
We don't have any idea what happened behind those closed doors.

[00:31:00] Speaker 04:
But it does feel a little funny that, effectively, the prosecutor is allowed to go in while the judge is deciding it.

[00:31:11] Speaker 03:
Any other questions?

[00:31:12] Speaker 03:
I think I'm pretty far over my time here.

[00:31:14] Speaker 00:
Other questions?

[00:31:16] Speaker 03:
Thank you, counsel.

[00:31:16] Speaker 03:
Thank you.

[00:31:17] Speaker 00:
All right, let's put three minutes on the clock for rebuttal.

[00:31:23] Speaker 02:
Thank you, Your Honors.

[00:31:24] Speaker 02:
I don't think I'll need three full minutes unless you guys have questions.

[00:31:28] Speaker 01:
Well, I do have questions.

[00:31:30] Speaker 01:
So then, qualified immunity to the defendants, the individual defendants, do you agree that there was no clearly established law prior to this so that they are entitled to qualified immunity?

[00:31:45] Speaker 02:
Your Honor, qualified immunity, the clearly established analysis for a due process property interest is different than it would be for any other constitutional right, because of the fact that the 14th Amendment doesn't set forth in the language of that amendment what rights you have, what rights an individual has.

[00:32:06] Speaker 02:
If you look at the First Amendment, that, you know.

[00:32:09] Speaker 01:
It wasn't even clearly settled right now whether or not there was a property interest, right?

[00:32:13] Speaker 01:
We'd probably be deciding that right now.

[00:32:15] Speaker 01:
So how are the individuals going to be held liable?

[00:32:19] Speaker 02:
Your honor, I think it's clearly established.

[00:32:21] Speaker 02:
I think the analysis has to be a little bit different for property interests.

[00:32:24] Speaker 02:
And you see that in the Doe versus White case, the Ninth Circuit unpublished decision.

[00:32:29] Speaker 02:
You see it in, I've cited it in my opening brief, in Stroh Snyder versus City of Nampa, where

[00:32:38] Speaker 02:
They look at the policies.

[00:32:40] Speaker 02:
They look at the policies to see if that clearly establishes it.

[00:32:43] Speaker 02:
And I'm not using that as a clearly established site, because that's a district of Idaho case.

[00:32:50] Speaker 02:
But what I think clearly establishes was the ISBOE policy that states that students have a due process right.

[00:33:01] Speaker 04:
How would it be apparent to university officials when they've had Judge Windmill's prior decision

[00:33:07] Speaker 04:
saying that there wasn't a property right.

[00:33:10] Speaker 04:
And then Judge Nye would conclude that there isn't a property right.

[00:33:13] Speaker 04:
They wouldn't have known that at the time.

[00:33:15] Speaker 04:
So how was it clearly established?

[00:33:17] Speaker 04:
And then we got to the whole problem as to what processes do under Matthews v. Eldridge, which is a balancing test.

[00:33:23] Speaker 04:
How could you possibly anticipate that you have clearly violated the Constitution and should have known better?

[00:33:30] Speaker 02:
Your Honor, the argument was that it was not clearly established that Ms.

[00:33:34] Speaker 02:
Dudley had a due process property interest.

[00:33:37] Speaker 02:
Right.

[00:33:37] Speaker 02:
And I ended up drafting a sir reply, and the court denied it on that issue, because I thought the defendants were started off with an argument that there was no clearly established property interest, and then going and saying, well, there's not a clearly established violation, but here,

[00:33:59] Speaker 02:
The Matthew issues, those don't come up in the clearly established analysis, because this just isn't clearly established.

[00:34:05] Speaker 02:
It has a due process property interest.

[00:34:07] Speaker 02:
And the ISBOE policy, I think, does that.

[00:34:09] Speaker 04:
So let's suppose the qualified immunity that your damages claim is off the table.

[00:34:13] Speaker 04:
What's left?

[00:34:14] Speaker 04:
injunctive relief.

[00:34:15] Speaker 01:
So does that go back down to the district court?

[00:34:19] Speaker 01:
Or you're not asking us on this record to grant injunctive relief and reinstate your degree?

[00:34:24] Speaker 01:
Or are you asking for that?

[00:34:26] Speaker 01:
It shouldn't be the remedy.

[00:34:27] Speaker 01:
We remand, if we go down that route, remand to the district court for further proceedings?

[00:34:33] Speaker 02:
Your Honor, I don't have a good answer for that.

[00:34:37] Speaker 04:
To the extent that you guys have the authority to do that, I would... If we thought that your client did have a property interest, should we decide what process she's entitled to?

[00:34:49] Speaker 02:
No, Your Honor, I think that can be remanded.

[00:34:50] Speaker 04:
OK.

[00:34:51] Speaker 04:
And so that would be for the district court.

[00:34:52] Speaker 04:
So if the district court thought that there was a due process problem here, then the district court could issue an injunctive relief saying you can't take away her diploma and expel her until you conduct a second hearing?

[00:35:11] Speaker 04:
So you want a second hearing?

[00:35:13] Speaker 02:
Yes, Your Honor, I think that that would work.

[00:35:18] Speaker 00:
The parties have fully briefed what processes do.

[00:35:21] Speaker 00:
Am I right about that?

[00:35:24] Speaker 00:
You have briefed what this hearing should have looked like.

[00:35:26] Speaker 02:
Yes.

[00:35:27] Speaker 00:
So what's the benefit of remanding that question to the district court?

[00:35:29] Speaker 00:
It's a question of law.

[00:35:30] Speaker 02:
Well, and I agree.

[00:35:33] Speaker 02:
My unfamiliarity is with how that process works.

[00:35:36] Speaker 02:
And I have not found the case law that addresses what you guys can decide on an issue like that.

[00:35:42] Speaker 02:
And so I think that that's why I had asked this court to make those determinations.

[00:35:48] Speaker 02:
But I also understand that in most cases, we have a rule.

[00:35:51] Speaker 04:
OK, so if we decided, one, that there was a property right, and two, that there was some kind of a due process violation here, then what do we do?

[00:36:01] Speaker 02:
I think that you can order the reinstatement of Ms.

[00:36:06] Speaker 02:
Dudley's degree.

[00:36:08] Speaker 02:
And I think that to some extent, the case is going to have to be remanded to deal with the issue of the Matthews factors.

[00:36:21] Speaker 02:
And Judge Forrest, I understand what you just said, but I think that we still have this case.

[00:36:27] Speaker 02:
And so I think that just a ruling that

[00:36:29] Speaker 02:
That miss deadly's rights were violated And that her degree needs to be reinstated and then we'd probably presumably go back through the process and so I'd have to think about how the the district court's case fits in here I assume there'd be an amended complaint at some point, but probably after after additional process happened With

[00:36:56] Speaker 00:
All right, I think that's all the questions, and we've taken you way over.

[00:36:59] Speaker 00:
So I thank counsel for your helpful argument in this challenging and interesting case.

[00:37:03] Speaker 00:
The matter of Chelsea Dudley versus Boise State University at all is submitted, and we are completed for the week.

[00:37:15] Speaker 00:
All rise.