Via the Washington Post:

The Kansas Supreme Court yesterday struck down a state law that penalized same-sex statutory rapes by 18-year-olds much more harshly than heterosexual cases, ruling that the law unconstitutionally discriminated against gays.

Of course, when prosecuted (rarely), women charged with statutory rape of a minor male generally face a much lighter sentence than hetersexual male statutory rapists. Wouldn't precedent like this eventually lead us to a view that all males convicted of statutory rape (of either sex) are punished harsher than females thus also sentenced in violation of the Equal Protection Clause. I'm not sure that's a result many people at all really want.

Pennoyer says that U of Rhode Island's "so-called 'double jeopardy' problem is more vexing" than the dorm search and questions whether jeopardy has even attached, as the actions are administrative in nature. A valid point, and I had initially raised concerns, but I wonder if we aren't missing the issue: its an "administrative" action because its a state actor, but really all they're enforcing is a private (contractual) remedy, essentially outside of a traditional legal context (court or administrative), save the fact that they happen to also be a state agency. A public school would likely provide for the same proceeding, and I'm not sure it's different for the state actor — i.e., I'm not sure that asking about jeopardy is the right thing to ask in the first place.

Thinking about a private school scenario, the proceedings would be to decide if the student would be allowed to stay on the campus, determined by school administrators (and maybe student panelists), based on the consented-to rules of the campus. Although we're talking about underlying actions that may be illegal, there's certainly no real jeopardy - at least in the criminal sense - attached because there's (at least at this stage) no crime charged. And there's not even a civil penalty on the line (yet), because we're not in court yet.

Now, the real question is does this intragroup procedure change in some way when the state is the head of the group and, if so, how. I'm not sure that it does, as a matter of law, and even less sure that it should. Yes, we're talking about an administrative body of government, but its not really involved in an administrative procedure in the usual sense. The proceedings aren't occurring because the state agency has a coercive power to compel it, but because it has the "private" right to do this to members of the group because they consented to the rules of the campus. It's certainly comparable to the private school scenario, and probably rightly comparable to something like a homeowners' association proceeding to enforce rules, too. The mere fact that it occurs in the state need not necessarily transubstantiate a private, non-legal remedy — an enforcement of internal and agreed-upon rules (although it could eventually be brought in court, on contractual terms).

I agree with Mr. Green's comments regarding the propriety of staging a protest in response to the University of Rhode Island's new rules. Because we're not talking about the criminal justice system but rather an administrative arm of the state, procedural due process is really the only concern here with regard to the search rules and 're-indictment after acquittal' unless the police are using University officials as a conduit to avoid the requirements of the Fourth Amendment.

Whether the University has provided due process is governed by the law school classic Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the Supremes stated that the factors to be considered are (1) the private interest in a pre-deprivation hearing (how much would the party be harmed by the government action, even if he had a strong case against the deprivation?); (2) the risk of error/value of additional procedures (is this an easy decision to make in isolation or on paper, or would additional procedures like the right to counsel or the right to cross-examine witnesses help avoid the risk of error?); and (3) the value to the government in a post-deprivation hearing (usually very high where there is a great chance the government will not be able to recover property erroneously given).

The University could probably make a strong argument in favor of its rules under this test under the same line of reasoning that justifies warrantless police searches due to exigency. The private interests are the broadly stated and vague interests in being secure in one's belongings, but this interest is probably almost entirely overcome by the fact that the dormitory rooms are owned and operated by the state and provided to the students as a service.

The so-called 'double jeopardy' problem is more vexing. In the criminal context, jeopardy attaches as soon as the jury is empaneled, but the procedures here are administrative in nature. The unusual procedure here would present an interesting hypothetical in an administrative law class, as it seems that the school could have an infinite number of chances to charge a student with an offense, provided some new evidence is found within a week of each acquittal. Double jeopardy comes into play in a civil context when an agency punishes a person or entity for the same conduct for which that person or entity has already been punished in a criminal setting. Likewise, a civil penalty that is meant to prevent or deter wrongdoing is 'punishment' for double jeopardy purposes. Multiple punishments for the same conduct is permissible if imposed in the same proceeding, but not if there are two proceedings in which punishment is imposed. The interesting question in the administrative context is whether jeopardy has ever attached when a person is acquitted during the first proceeding and not punished. I am not sure whether this question has been answered.

The Chronicle of Higher Education reports (subscription req'd) a student protest of a new campus housing policy:

Students at the University of Rhode Island gathered on Monday outside the office of the university's president to protest new disciplinary policies that, they say, violate their civil liberties.

The new policies, which were approved last week by the president, Robert L. Carothers, give university officials more power to investigate and punish students for both on- and off-campus offenses. In particular, they permit administrators to search dormitory rooms without students' consent and, in campus disciplinary proceedings, to charge a student with the same offense more than once if new evidence is reported within a week of an acquittal.

The policy changes were adopted to curb student disciplinary problems, particularly those associated with alcohol and drugs.

But protesters on Monday called the new policies "draconian and egregious."

The dorm room search doesn't strike me as so egregious. My apartment lease expressly allows for the building owner and management to enter "at any reasonable hour." Most do. Sure, searching would be a little different, but universities are more often being held liable for suicides and drug and alcohol related deaths, so I think it's a reasonable response to their growing liability. Ideally, if I were a student Rhode Island, I would want to see that there were at least minimal procedural safeguards (e.g., that there has to be some cause), but the search itself isn't overly concerning to me, even considering the (public) school's status as a "state actor."

The latter part, however, does smack of double jeopardy. And we are talking about a state school. A better solution might be to adjust procedures so that disciplinary proceedings lasted a little longer, to cover (partially or entirely) this one week window which the university apparently feels may be important, at least in some cases, to obtain all evidence.

Still, even with some concerns, I can't help but think a protest is an overreaction. Students are fabulous at overreacting, and especially when it involves protesting. They might, after all, find much better success trying a respectful letter and student government action. I suspect all they've achieved by protesting is making Dr. Carothers all the more dogged.