Our last couple of blog posts have dealt with a recent federal court ruling against Rhodes College, a private school in Tennessee. This court ruling applied federal due process requirements through Title IX law to private colleges.

The extension of due process raises an important question: Were there no due process rights in private colleges, before?

The answer is a complicated “no.”

Public Schools Versus Private Schools

Private schools, while not necessarily run for a profit, and while they often receive at least some state and federal funding and grants, are defined by the fact that they are not directly run by the government.

Public schools, on the other hand, are arms of the state government. Tuition is often cheaper because it is offset, for in-state students, by tax dollars that get funneled into the school.

Due Process and State Actors

The difference between public and private schools is important because the due process rights that are guaranteed by the U.S. Constitution require state action.

If the federal government is not the one who is trying to deprive someone of life, liberty, or property interests, then the Fifth Amendment's due process clause does not apply.

If the state government is not trying to deprive someone of life, liberty, or property interests, then the Fourteenth Amendment's due process clause does not apply.

So, when a public school has a disciplinary hearing that could expel a student for sexual misconduct in violation of Title IX, the accused student has due process rights thanks to the Fourteenth Amendment.

However, when a private school is conducting that same disciplinary hearing, there is no state action to trigger either due process clause.

Private Schools Are Only Bound by Contractual Rights

That does not mean that private schools can do whatever they want to students, and expel them for things like sneezing on the school president. Instead, private schools and their students have signed a contract with one another that gives rights and demands obligations from each side.

The biggest rights and obligations involve the student paying tuition and taking the required classes, in exchange for receiving a degree at the end of it all.

Often overlooked are the investigative and hearing procedures that students agree to, should they ever get accused of academic misconduct or sexual misconduct while in school. These procedures basically stand-in as a replacement for a student's constitutional due process rights, and because they come from a signed agreement between the school and the student, they are enforced by the state's contract laws.

This is why the student at Rhodes College who was accused of rape and got expelled in a sham hearing sued his school under both Title IX and breach of contract. It is also why it is such a big deal that the court's ruling, in footnote 4, recognized that the student had due process rights in his Title IX claim, but not in his breach of contract claim.

Title IX Defense With Joseph D. Lento

Joseph D. Lento is a Title IX defense lawyer and a national Title IX advisor. Call his law office at (888) 535-3686 or contact him online if you have been accused of misconduct on campus.