Due Process: Nomos XVIII

9. Due Process in a Nonlegal Setting: An Ombudsman's Experience

9 DUE PROCESS IN A NONLEGAL SETTING: AN OMBUDSMAN'S EXPERIENCE DAVID J. DANELSKI As a university ombudsman, I was especially interested in Frank Michelman's and Edmund Pincoffs's discussion of the moral and legal requirements of due process in cases like Roth v. Board of Regents.1 Several persons in Roth's position have sought my help as ombudsman in the past two years, and although only a few of them had their contracts renewed, all of them were given reasons for their terminations. This indicates that the standards of due process in some nonlegal settings differ from judicial due process. For academic ombudsmen, those standards are much like the standards discussed by Michelman and Pincoffs. The observations that follow are based on my experience as an ombudsman. (1) It is a mistake to dwell solely on the legal aspects of due process, particularly in cases like Roth's, for seldom are such disputes settled in courts. In fact, the lesson of Roth is that in such cases the judicial route is a dead end. Even if Roth had offered hope of legal redress, few professors in Roth's position would go to court because of the costs involved. Typically they would go to nonjudicial agencies for help-faculty academic freedom committees, the American Association of University Professors, or an ombudsman's 257 258 DAVID J. DANELSKI office-because those agencies are more likely than courts to settle such matters quickly and economically. That is one of the reasons for the dramatic increase in the number of ombudsmen's offices in American colleges and universities in recent years.2 Another reason is that the vast majority of complaints about institutional injustice are not susceptible to judicial resolution. Although ombudsmen's procedures are extralegal, they are influenced by legal notions of due process. This is due in large part to the facts that due process is a legal concept and that many ombudsmen are trained in the law. When a due process question is raised with them, the initial questions they are apt to ask are: Do I have jurisdiction? Has notice been given? Has there been an opportunity for a hearing? Then they ask: Even if all the legal requirements of due process have been met, is the procedure fair? The question of fairness rather than legality is crucial in everything an ombudsman does. But what are the standards of fairness? In seeking to answer this question, Michelman's and Pincoffs's ideas are very useful. (2) Most ombudsmen would readily accept Michelman's paradigm of due process. My own procedure includes its basic elements of revelation, participation, and justification. In some ways, ombudsmen are in a better position than judges to guarantee this conception of due process. Like judges, they' are independent and impartial. But-unlike judges-they do not have the power of binding decision; their power is based on moral authority and persuasion. And unlike judges, they participate actively in the settlement process; they act as investigators, mediators, and counselors . They cannot control the outcome of the settlement process, but they can insist that it be fair. The general procedure in my office is as follows: (a) Complaint. The typical case begins with a complaint. Any person who feels that he or she has been treated unfairly by anyone in the university community may make a complaint. The right to complain is in my opinion essential to due process. The complaint procedure in my office differs from the complaint procedure in courts in the following respects: First, it is informal and virtually costless. No trained intermediary-e.g., a lawyer-is necessary, and no formal statement need be made. Second, complaints are made confidentially and the identity of persons making them is not disclosed unless they consent. Third, sometimes I initiate the Due Process in a Nonlegal Setting 259 complaint process. I may read about some university action that on its face seems unfair, or hear about it from a third party and ask to see the parties involved. Fourth, in some cases, the principal effect of making a complaint is catharsis. In discussing their complaints, it is not uncommon for complainants to show anger or other emotion. For some of them, the matter ends there, and they ask that no action be taken on their complaints. Usually all of the elements of Michelman's due process paradigm are present-at least incipiently...