II. PIERCING THE VEIL OF FAUX LEGALITY.
The Hillsdale leadership also has a history of cloaking itself in faux legality. For example, in the recent sex-and-suicide scandal, the trustees invoked Roche's "right to privacy" to avoid awkward questions about his conduct and, more important, what they knew about his conduct. The veil of faux legality cloaked virtually every aspect of the Nehls case. Throughout Nehls's ordeal, the Hillsdale administration hid behind legal phrases and availed itself of the services of a lawyer to pursue utterly spurious charges against an impecunious nineteen-year-old. As the following will show, the charges against Nehls changed in important respects several times during the proceedings against him, which is a sign of their bad faith. Nonetheless, the charges can be summarized as follows: (1) acting as an agent of Hillsdale College to enter into a contact with TCB Publishing Co., (2) following which Hillsdale College was falsely represented to solicit advertising revenue for a product from said publishing company, (3) which is "tantamount to fraud," and (4) which resulted in damage to the college's reputation in the Hillsdale business community during an important fund-raising campaign. Of these factual assertions and legal conclusions only two are true: Nehls signed a contract with TCB Publishing, and TCB Publishing sold advertising space to Hillsdale merchants. It is not true that this conduct is tantamount to fraud, and the college never offered any proof that its reputation with local merchants was damaged severely or at all. Indeed, if the institution sustained any damage because of the affair of the folders, it was because Roche and Barker refused to permit the distribution of TCB's folders to Hillsdale students. Equally important, it is not at all clear that Nehls signed the TCB contract without authority, or that TCB representatives made any false representations when they sold advertising to local merchants.
The Hillsdale College Code of Conduct in force at the time of the expulsion stated that "[s]tudents or others are subject to discipline through due process" for eighteen specifically enumerated offenses. The procedures used to expel Nehls were a travesty of due process. In the context of student discipline, procedural safeguards need not be as formal as they are in a criminal court, but they cannot be arbitrary or unfair, otherwise the term "due process" would have no meaning. At a minimum, students have a right to a clear statement of applicable disciplinary rules, to notice of the charges against them, and to a fair hearing. Fair notice of the charges requires a clear statement of the factual basis of the charges and a clear explanation of why the college contends that disciplinary rules were violated by the alleged conduct. A fair hearing requires some notice of the evidence against the student and an opportunity to confront that evidence and prepare a defense before any hearing. Finally, there is the issue of the burden of proof. When a college undertakes to expel a student for serious offense, it bears the burden of establishing the facts underlying its accusations and of showing why the conduct is serious and merits expulsion.
Nehls received none of these protections. He was expelled for conduct that is not a violation of the Hillsdale College Code of Conduct. The charges against him were never clear, they changed continually, and the college failed to establish them with credible evidence. At the hearing before Roche, Nehls's defense was hampered by tardy responses to legitimate requests for information about the charges and by an unreasonably accelerated schedule that permitted him only twenty-four hours to prepare his defense. Such summary treatment of a student who posed no threat to anyone's safety or property was unconscionable and marked a new low in shamelessness, even for the Roche regime.