Due Process Higher Education

The United States Constitution is the highest law in the United States. It establishes the form of the national government and defines the rights and liberties of the American people. Under the Fourteenth Amendment of the United States Constitution, no state may “deprive any person of life, liberty, or property, without due process of law.” Students attending public institutions of higher education are entitled to these rights. The Due Process Clause serves as the primary external source of procedural requirements for public institutions. “The Due Process Clause guarantees more than fair process, and the liberty it protects includes more than the absence of physical restraint” (Bach, 2003, p. 31). This paper will focus on rights afforded students, as required by due process, within the context of student suspensions and expulsions. It also describes the applicable case law associated with due process rights for students in higher education. Due Process

There are two forms of due process, substantive and procedural. Both forms of due process must be considered when a public institution contemplates dismissing a student for academic or behavioral reasons. Substantive due process means that the rule itself must be fair and the substance of the decision must be sound, not arbitrary and capricious (Garner, 2004). “Under substantive due process, students cannot be disciplined for constitutionally protected actions, or for actions which the government has no legitimate interest in punishing” (Bach, 2003, p. 31). Institutions have a right to expel, suspend or issue sanctions for misconduct or academic inadequacies. In these situations students must be afforded the rights guaranteed by the United States Constitution. Acting as an arm of the state, public institutions are required to provide a certain level of due process and other constitutional rights. Private institutions, however, are not required to provide the same level of safeguards. While students at private institutions may not have a constitutionally protected property interest, they nonetheless hold important contractual interests and deserve to be treated with the fundamental fairness that is at the heart of the due process protections of the Unites States Constitution (Bach 2003, p. 6). Leading Case Law

Dixon v. Alabama State Board of Education (1961) was the first case to recognize a university student’s right to due process in a disciplinary hearing. Alabama State College expelled nine black students, without notice and without benefit of a hearing, after the students conducted sit-ins at a public courthouse restaurant that refused to serve blacks. The Fifth Circuit Court of Appeals, in Dixon v. Alabama State Board of Education (1961), held that students at public universities were entitled to at least fundamental due process. This includes a notice of the charges, a hearing, notification of witnesses and the results of the hearing. The Court held that the institution must establish reasonable grounds for its disciplinary actions through procedural guidelines that are based on “fundamental principles of fairness” (Dixon v. Alabama State Board of Education, 1961). The notice and hearing provides an opportunity for both sides to be heard and protects the rights of all involved. Esteban v. Central Missouri State College (1969) followed Dixon and provides the highest level of protection and due process requirements. The involved students had been suspended for two semesters for participating in protest demonstrations. The court held that the students had not been afforded procedural due process and detailed nine protections.

Those protections included: a written statement of the charges at least ten days before the hearing, a hearing before the person(s) having the power to suspend, the opportunity to examine evidence the college intended to present at the hearing, the right to bring counsel to advise, the opportunity to present their side of the events, the right to hear the evidence against them and to question adverse witnesses, a determination of the facts based on evidence at the hearing, a written finding of fact, and a right to make a record of the hearing at their expense. The leading case in the review of academic judgments is the Board of Curators of the University of Missouri v. Horowitz (1978). A medical student was dismissed for deficiencies in clinical performance, peer to patient relations and personal hygiene. The court concluded that the dismissal from medical school would make it difficult to enroll in another school or get a job in a medical field. As such, the dismissal would deprive Horowitz of her liberty under the Fourteenth Amendment. The liberty interest in continuing her education required to school to provide “a hearing before the decision making body or bodies, at which she shall have an opportunity to rebut the evidence being relied upon for her dismissal and accorded all other procedural due process rights” (Horowitz v. Board of Curators of the University of Missouri, 1976, p. 1323).

A number of subsequent court cases have reinforced the students’ right to receive notice of the charges and the procedures related to hearings. In a reverse of Dixon, which stated that expulsion required notice not only of the charges but also the names of witnesses and their expected testimony, Nash v. Auburn University (1987) held that a student in a disciplinary hearing had no right even to a summary of the expected adverse testimony. Gorman v. University of Rhode Island (1981) challenged the fairness of a hearing. The court held that the hearing did not have to be ideal, but that it was fair and afforded Gorman the essential elements of due process. In Gomez v. University of Maine System (2004), the procedures of the hearing and ability to cross examine witnesses were called in to question. Two students accused of sexual assault were forced to cross examine their accuser from behind a screen to protect the victim. The court held that the cross examination could have been effected by the barrier.

In an academic case, Crook v. Baker (1987), the federal District Court for the Eastern District of Michigan held that a university student was entitled to notice and a hearing before the University of Michigan could rescind a graduate’s master’s degree on the grounds that he fabricated data underlying his thesis. “Courts have held that schools may not deviate from the express due process protections established in their student conduct codes, whether they are public or private institutions, as such deviations would violate the implied contractual interests of the student” (Bach, 2003, p. 6). Lightsey v. King (1983) is an example of such an opinion. A student was given a grade of “zero” for cheating, even after the institution’s Honor Board found him “not guilty” of the allegations. For student conduct codes to have credibility, the institution must abide by them. The court held that there is no difference between failing to provide a due process hearing and providing one and ignoring the outcome. By holding the Honor Court hearing and then disregarding its result, they violated Lightseys right to due process.

Tedeschi v. Wagner College (1980) involved a private school that suspended a part-time student because of her alleged disruptive and abusive conduct during and outside class. The student filed suit seeking monetary damages and reinstatement. The court ruled in favor of the school stating that the informal procedure used by the school was used in good faith and was not arbitrary. The New York Court of Appeals reversed the decision, ordering a reinstatement, because the school brochure that outlined the procedure for suspension/dismissal stated that the Student-Faculty Hearing Board would be convened, which it was not. The contractual relationship between the student and the college requires the school to follow its own rules (Tedeschi v. Wagner College, 1980). In Fellheimer v. Middlebury College (1994), the court held that “Middlebury College was bound to provide students with the procedural safeguards and rights it promised in its publications” (p.242). “It imposes on the school a good faith duty, at a minimum, to substantially adhere to its published disciplinary procedures” (Bach, 2003, p. 9). Implications for the Practitioner

“Certain inalienable rights are so fundamental to fairness that they must be observed in the rules governing student disciplinary hearings. To deny students these rights is to deny the student a fair hearing” (Bach, 2003, p. 1). Institutions must have a set of procedures in place that afford students due process. An essential part of the procedure is created by a written student conduct code. The student conduct code, provided to each student, usually at the beginning of each academic year, serves as one of the primary documents used by institutions to describe expectations for students in both the academic and non-academic areas. The student conduct code puts students on notice that their continued enrollment is subject to their obedience of the school’s rules, and also informs them of the procedures that will be followed in the event that the student does not meet those expectations. “The written code provides the terms and conditions to be followed by both the school and the student, thus creating an implied-in-fact contract between the school and the student” (Bach, 2003. p. 8). Notice that the student did not meet the expectations outlined by institutional policies is the first step of due process.

What constitutes notice may be difficult to measure, but ample time, at least 10 days, should be given for the student to prepare for the hearing. The notice should define the method by which notice is to be served and the information to be provided to the student. A notice may include: date, time and place of hearing; specification of the misconduct charged; name of the complainant; date, time, location of incident and any witnesses; notification that the person charged may be accompanied by an advisor of their choice; a copy of the hearing procedures; and other pertinent information deemed appropriate. Part of the procedural process must involve a hearing. Administrators at both public and private institutions utilize many types of hearings. Hearings may be held by committees with members representing students, faculty and administrators to give the perception of being unbiased and fair or they may have pre-designated members or chairs. Hearings with a single hearing officer that determines the fate of the student may appear to be the least impartial. An impartial and complete hearing is essential to guarantee due process.

College and universities vary in the degree of representation afforded students in disciplinary hearings. Most institutions permit some level of assistance of counsel. Court decisions vary dramatically on the issue of representation by counsel at student disciplinary hearing, but courts consistently have held that students have a right to an attorney’s participation in a disciplinary hearing when the university itself has the right to representation of counsel (Wasson v. Townbridge, 1967) (French v. Bashful, 1969). “Statements setting out factual findings and the evidence supporting them play a crucial role in assuring a result based on evidence in the record and in allowing students to effectively challenge the result both within the institution and in the courts” (Kalinsky, 1990, p. 578). The level of evidence the courts determine necessary has been inconsistent, providing administrators with little guidance.

In Smyth v. Lubbers (1975), the court held that the university should have “a standard of proof greater than substantial evidence when the alleged misconduct was also a crime” (p.781). In Slaughter v. Brigham Young University (1975), the court held that “substantial evidence” was sufficient. The process administrators use to make their decision is another critical component of due process. According to Stevens (1999), legal action may ensue not only based on how administrators handle disputes, but how they arrive at the conclusion. Administrators look to the U.S. Courts to provide guidance through court decisions. It is then up to administrators to apply principles set forth by the Constitution and to provide due process in good faith based procedures. Good faith is imperative when decisions derived from disciplinary hearings could have the potential to have serious and life-changing ramifications. Reduction of Liability

“In the process of enforcing their academic and disciplinary standards, colleges and universities increasingly find themselves confronting the possibility of litigation” (Dutile, 2000, p. 1). The challenge is in meeting the expectations the courts, students and institutions. Litigation and liability may not be able to be prevented by they can be reduced through careful consideration of due process procedures. Student conduct codes must be clear and must not prohibit any activity that is an otherwise a protected right of students, such as free speech. Prohibited behaviors must not be overly broad. Codes must describe behavioral expectations that the average student can understand with clear consequences for violating those expectations.

If the student cannot clearly understand what behavior is prohibited, the code fails to serve one of the primary purposes, which is to put students on notice of the conduct expected of them (Bach, 2003). Policies related to the disciplinary process should provide enough guidance but not be so restrictive that discretion can’t be used and each situation evaluated on its merits. Policies should not include statements such as will, shall or must, which take away the flexibility to look at each case on its own merits. Every circumstance cannot be accounted for and there will always be exceptions. Policies and procedures must be followed as outlined. The contract between the student and the institution relies on both parties understanding the expectations of the process. “The courts also will likely be less inclined to credit the institution’s efforts when it fails to live up to its own procedures” (Dutile, 2000, p. 280).

Liability can also be reduced by ensuring all personnel used in the disciplinary process are trained in the requirements of due process and their role in the process. University administrators should have a thorough understanding of constitutional guarantees and the procedures that should be followed when dismissing a student. Part of the training must also include consistency in the decision making process. Snap judgments will result in arbitrary and capricious decisions that are likely to be challenged. Committee members should be carefully selected to ensure that an unbiased review is conducted. The system is only as good as the policies and components that it is comprised of. Administrators must also stay abreast of legal precedents and current case law and changes policies and procedures before a law suit occurs. Conclusion

A failure to protect any of the rights of students results in a flawed system that may have life-long consequences for the student. Institutions will never eliminate challenges to decisions of administrators that are made as part of the disciplinary process. They can, however, eliminate court decisions in favor of the student by ensuring that the process afforded students meets the requirements set forth by the Fourteenth Amendment, as it is interpreted by the courts. Providing clear policies and behavioral expectations, having procedures in place at each step of the review process, a clear timely notice to the student, an unbiased hearing, a review of the evidence based on its individual merits and a consistent, thought out result will place the institution in a position to defend its decision. The rest is up to the interpretation of the courts.

References

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