Due Process on College Campuses

When you're facing disciplinary action at school, it's hard to know what to expect. Will it be like a criminal trial? Or is it more like going to the principal's office? You've heard that you're entitled to “due process” in any disciplinary proceedings, but what does that mean?

Due process varies widely depending on whether you are at a public or a private university. In a public college or university, your due process rights are guaranteed by constitutional law because state schools are run and financed in large part by the state. So, the courts can consider any disciplinary action they take against you to be a “state action” governed by your rights under the Constitution.

In contrast, private colleges and universities are governed by a type of contract law. Your rights at the school and with respect to school disciplinary matters are governed by an agreement you enter into with the school when you become a student. But because private schools' disciplinary actions are not “state actions,” these schools have much wider latitude than public schools, although there are still limits on private school procedural actions.

Due Process at Public Universities: What is Due Process?

The right to due process is enshrined in the Fifth Amendment to the U.S. Constitution, which provides that no one should “be deprived of life, liberty, or property without due process of law.” The Fourteenth Amendment to the Constitution applied the Fifth Amendment to all of the states. It expanded it beyond criminal proceedings to include all situations in which an individual could lose a right or privilege.

Think of due process as the process to which each person is due before something of importance is taken from them. The state police can't just lock you up for life without charging you with a crime, allowing you to consult an attorney, allowing you to submit evidence, and cross-examine witnesses. Similarly, your town can't just decide they'd like to put a parking lot where your house is and bulldoze it the next day. Rather, there is a process they must follow, giving you notice, proposing an amount of compensation for your property, and allowing you to appeal the decision through the city and the courts. Basically, the government can't act arbitrarily.

These “due process” clauses apply to governmental actors like federal, state, and local governments. Because state colleges and universities are funded and administered by the states, students have due process rights at these institutions. The Constitution doesn't grant a right to due process at private or religious colleges and universities because these schools aren't considered state or governmental actors.

History of Due Process

We owe the concept of “due process” in American law to the Magna Carta, signed in England by King John in 1215, in an attempt to end a rebellion that threatened his throne. While the document intended to secure liberties for England's ruling class, the Magna Carta brought an end to English monarchs' absolute power and enshrined the concept of due process in the common law. While the concept seems like one of fundamental fairness to Americans in the 21st century, a document that ended arbitrary royal action was groundbreaking in the 13th century.

1. Law of the Land

The English parliament later codified the Magna Carta's protections into law, replacing the “law of the land” with “due process of law.” When English settlers came to America, they also brought their legal traditions. Most American colonies contained “due process of law” provisions in their statements of rights. However, some of the colonies broke this down into “due process of law” and “due course of law” provisions. The colonists directed both of these provisions to the procedures by which the colony brought someone “to answer” before a court of law.

2. 5th & 14th Amendments

When the U.S. Constitution's framers debated the Bill of Rights, the 5th Amendment was not controversial. Rather, virtually every colony had its own similar due process provision and considered it a basic right of the common law. However, at the time, “due process” was thought of as a requirement for fair and impartial judicial criminal proceedings.

It wasn't until the 19th Century that American lawyers and judges transformed the meaning of the due process clause and state equivalents into something that protected the people from legislative abuses like taking property or interfering in “vested rights.” Over time and with the passage of the 14th Amendment, this concept developed into protections for both substantive due process and procedural due process. The difference between the two lies in the difference between a right or liberty and procedures.

3. Substantive Due Process

Substantive due process relates to liberties or rights guaranteed by the Constitution. While our Constitution doesn't expressly mention substantive due process, it is enshrined throughout the Bill of Rights – the first eight amendments to the Constitution. A court dealing with a substantive due process argument will focus on the scope and the freedom or liberty enshrined in the Constitution.

Substantive due process conflicts are generally the purview of the federal courts and involve a specific law. The federal court must examine the statute to determine if there is a fundamental constitutional right at stake. If there is no basic right at stake, the court uses a “rational basis” review to determine if the state justifies the statute or narrowly tailored it to meet a state interest or concern.

Examples of substantive rights enumerated in the Constitution include the rights of freedom of expression and association. So, a law that purports to restrict free speech, a right or liberty, raises substantive due process issues. Substantive due process rights also protect people from overly harsh or unreasonable punishments. So, expulsion from school in response to a minor first offense raises substantive due process issues.

4. Procedural Due Process

Procedural due process relates to actual governmental procedures. The purpose of procedural due process is to guarantee basic fairness. Procedural due process can also ensure more accurate results, ensuring that no one unfairly loses a right or privilege. In fact, the more important the individual right in question, the more process the government should afford.

Some basic required procedures include:

• An unbiased tribunal,
• Notice of the charges or proposed action and the grounds for it,
• The right to know the evidence against you,
• The opportunity to present reasons why the action the school shouldn't sanction you,
• The right to cross-examine witnesses,
• The right to introduce witnesses and evidence,
• An opportunity to be represented by counsel,
• A decision based only on the evidence presented,
• A written record of the evidence presented,
• Written findings of fact and the reasons for decisions from the tribunal.

How Do Due Process Rights Apply to Schools?

Constitutional and common law due process rights come from the idea that a state actor or school is taking something important from you, whether it be a right or a property interest. It's important to remember that you have both substantive and procedural due process rights, and both of these come up in school disciplinary cases. These issues come up in many ways on campus, including restrictions on free speech, discrimination based on membership in protected class like race, gender, or religion, and removing a property right – your education.

For decades, colleges and universities have argued that the disciplinary process at school is educational rather than punitive. Of course, schools argue this in an attempt to sidestep the procedural due process rights of their students. But the law is clear. Students have the right to due process protections in disciplinary proceedings in public colleges and universities whenever they have a property interest or a right or liberty interest at stake.

What Are My “Property Interests” at School?

Once a college or university admits a student, they have a property interest in their education at that university. The progress you've made towards your degree, or a degree already conferred, has significant value. While the loss of coursework or a degree isn't as serious as going to jail, it significantly impacts a student's life and earning potential.

If a public college wants to suspend or expel a student, they can't remove that student's property right in their education arbitrarily or without due process. But just as with actions off the college campus, the more important the right or property a student will lose, the more process the school should afford. For minor infractions with only the possibility of probation or a warning, the due process a school affords a student may be much less than that afforded a student accused of a serious crime like sexual assault.

What Are My “Liberty Interests” at School?

Student disciplinary proceedings implicate both property and liberty interests. In Wisconsin v. Constantineau, the Supreme Court made it clear that disciplinary proceedings implicate liberty interests “[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him….” 400 U.S. 433, 437 (1971). When the state threatens to harm a person's reputation, this triggers a threat to a liberty interest serious enough to trigger a right to due process. A suspension or dismissal from school is certainly harmful enough to a student's “good name, reputation, honor, or integrity,” combined with the loss of an education, to trigger these due process rights.

Free Speech

Free speech is another liberty interest often impacted at school. The courts do allow schools to restrict some of students' speech, such as campus newspaper content. In one of the earliest cases dealing with restricted speech at a private university, Justice Frankfurter, writing for the majority, argued that academics need to be free from the political realm. See Sweezy v. New Hampshire, 354 U.S. 234, 266 (1954). However, it's important to note that Justice Frankfurter was referring to those employed in academic careers, not students.

But in the famous Tinker case, the Supreme Court made it clear there are limits to what schools can restrict. In Tinker, the parents of school children sued the school district on kids' behalf over a prohibition on wearing black armbands on campus to protest the Vietnam war. See Tinker v. Des Moines School Independent Community School District, 393 U.S. 503 (1969). The students argued that the prohibition violated their rights to free speech and free expression protected under the 1st and 14th Amendments. In ruling for the students, Justice Fortas's famous majority opinion noted, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506.

What Process is Due?

While we discussed how schools should afford students more due process for more serious charges, what does that mean? How does a school balance the appropriate amount of due process with the severity of the infraction? In many cases, the “rules” that colleges and universities follow developed over the years through federal and state legislation as well as case law.

The Bare Minimum

In all student disciplinary cases involving possible suspension or expulsion, public schools owe students a minimum amount of process, including notice of the charges, explanation of the evidence, and an opportunity to present their case or their side of the story. The Supreme Court established these minimum procedures in a series of cases. In Goss v. Lopez in 1975, the Court held that schools first owed students facing a temporary suspension from school an informal hearing with administrators. See 419 U.S. 565 (1975). In the opinion written by Chief Justice White, the Court stated that education is a property right protected by the 14th Amendment.

But even before the Goss decision, the Supreme Court established a child's right to an education as a “liberty.” Bolling v. Sharpe, a companion case to Brown v. Board of Education, was a class-action suit brought on behalf of 11 black students. In that case, the Supreme Court relied on the guarantee of liberty in the due process clause to recognize a child's right to a public education. See 347 U.S. 497 (1954).

The Supreme Court hasn't yet ruled on a case establishing the exact scope of due process protections in higher education, so the standard varies by state based on case law and state statutes. Some things that courts have said violate due process include:

• Not allowing a student accused of sexual misconduct to cross-examine the accuser or witnesses against them.
• Failing to disclose potentially exonerating evidence against a student. The accused is entitled to disclosure of exculpatory evidence.
• Training that could bias a panel against an accused student.

Academic Integrity Cases

Students who face academic suspension or dismissal and those accused of cheating are also entitled to due process. Although again, the amount of process due to each student may vary based on the allegations and the severity of the consequences.

1. Academic performance

Courts give wide latitude to educational institutions regarding academic decisions like suspensions or expulsions for poor grades. Suspension or removal from college or a graduate program is a serious matter with lasting consequences, but, in the absence of bad faith, an arbitrary and capricious decision by the school, or a violation of a constitution or statute, the courts won't substitute their decisions for those of the university. Rather the courts consider academics to be the best arbiters of academic decisions concerning students.

• No Hearing Needed for Academic Decisions

In Board of Curators of the University of Missouri v. Horowitz, the Supreme Court declined to mandate that schools offer hearings to students dismissed for academic reasons. See 435 U.S. 78 (1978). Horowitz involved a medical student dismissed from school despite her excellent academic performance. The school based its decision on her clinical performance problems, including clinical competence, peer and patient relationships, and personal hygiene. Horowitz sued the school, claiming breach of contract and violation of her 14th amendment rights to due process and equal protection.

The Supreme Court, while assuming that her education at the medical school was akin to a property right, declined to overrule the school's decision. With respect to procedural due process, the Court distinguished the academic dismissal from a disciplinary hearing, noting that the academic dismissal did not require a hearing. Concerning the substantive due process claims, the Court held that the school's decision wasn't “arbitrary or capricious” and warned of judicial intrusion into academic decision-making. The Court noted that “Courts are particularly ill-equipped to evaluate academic performance.” Id. At 92.

• Courts Leave Academic Decisions to Schools

Similarly, in Regents of the University of Michigan v. Ewing, another medical student tested academic standards, taking the case to the Supreme Court. 474 U.S. 214 (1985). Ewing was a student in a six-year medical program, which included an undergraduate degree plus a medical degree. The school dismissed him from the program for “consistently not meeting academic standards” after failing the exam required before beginning the final two years of the program. Ewing appealed the decision, contending the school violated his rights since the school allowed other students who failed the exam to retake it.

The Court noted that it had a “narrow avenue for judicial review of the substance of academic decisions.” The Court also pointed out that the decision wasn't arbitrary and capricious, but the record showed the school made the decision “conscientiously and with careful deliberation.” The school considered his entire academic record and that Ewing's exam grade was the “lowest score recorded in the history of the Inteflex program.” Id.

2. Cheating and Plagiarism

Academic integrity cases, on the other hand, can involve both academic decisions and disciplinary matters. Many colleges allow professors to handle minor instances of cheating informally without referring the matter to the administration for review. But if the school or the professor penalizes the student, the student still has a right to appeal the matter. Moreover, professors and academic departments may not follow the disciplinary procedures outlined in the school's policies exactly. Remember, a school must deliver what it promised to students, whether it classifies cheating as an academic matter or a disciplinary matter.

In Dixon v. Alabama State Board of Education, the U.S. Court of Appeals for the 5th Circuit made the distinction between academic and disciplinary decisions clear. See 294 F.2d 150 (5th Cir. 1961). Failure to meet academic standards is typically a black and white issue. There are no factual matters to determine surrounding the matter. A student either meets the standard, or they don't. As long as the school follows their published procedures, courts generally won't interfere with an academic decision absent the school's arbitrary and capricious action. But with a disciplinary matter, the school must determine the facts surrounding an alleged violation. As a result, a disciplinary matter requires more due process than solely academic matters.

Many schools prefer to frame cheating or plagiarism cases as “academic” cases because the courts are much less likely to overturn a decision on academic matters. However, as a defendant in such a case, your attorney or advisor should frame your case as a “disciplinary matter,” giving you more procedural protections under the law.

Sexual Assault & Title IX Cases

Allegations against students that fall under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., are typically subject to clearer, more stringent due process rules because of the gravity of the allegations and federal regulations. Moreover, issues surrounding sexual misconduct disciplinary matters are highly litigated.

1. What is Title IX?

Title IX is a federal civil rights law that prohibits discrimination based on sex in federally funded education programs. Title IX applies to public K-12 schools as well as public and state colleges and universities. The law and its regulations also apply to private colleges and universities if they receive federal funding. Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Congress originally intended the statute to tackle disparity in college admissions, financial aid, and athletics. Still, over the years, litigation and regulations expanded Title IX to include sexual harassment and other sexual misconduct.

2. Title IX Regulations

Title IX regulations set forth the minimum due process colleges and universities must give students in sexual misconduct disciplinary matters. Some of the procedures to which students are entitled include:

• Written notice of the allegations with sufficient detail. This detail should include the names of the other parties, the conduct alleged, the specific sections of the student conduct code violated, and the date and time of the alleged incident,
• Receiving this notice with time to prepare before any hearing,
• An unbiased and adequately trained tribunal,
• The ability to introduce evidence and witnesses,
• The ability to cross-examine witnesses, the complainant, or the respondent,
• The ability to consult an attorney or advisor,
• An application of the correct standard of proof,
• Disclosure of the evidence against the respondent,
• The right to inspect and review all evidence,
• The right to discuss the allegations and contact potential witnesses,
• Any procedures provided to either party must be available to both, including cross-examination, the right to submit questions to be asked of witnesses, and the right to have an attorney or advisor present,
• Having an advisor cross-examine witnesses, including the other party,
• Receiving a written investigative report at least ten days before any hearing, and
• Provide each party with written findings of fact and conclusions of law with a rationale for the results, the sanctions, and remedies.

Schools may also use informal resolutions or hearings if both parties consent in writing, but regulations don't require this.

Under Title IX regulations, schools can use either the “preponderance of the evidence” or the more stringent “clear and convincing evidence” standard when deciding sexual harassment cases as long as they use the same standard for all students and employees, including faculty. 34 C.F.R. §106.45(b)(1)(vii); §106.45(b)(7)(i).

3. Campus Security Act

The Campus Security Act of 1990 requires any institution receiving federal funding to create formal rules for sexual assault cases. So, private schools must also create rules for sexual assault cases.

Schools Must Follow Their Established Procedures

Regardless of the due process required by federal and state law or the constitution, your college or university must give you all of the due process they promised. While there are minimum standards set by law and case precedent, many colleges and universities offer more procedural due process than the law requires. Your school's procedures and policies typically set forth all of the due process protections to which its students are entitled. Even if the school's processes are more generous than those afforded to you by the law, the school must give its students the due process it promised. Some states also have administrative rules that state schools must follow.

For example, let's say you face a college Title IX disciplinary action alleging sexual assault. If your school typically determines responsibility based on a “beyond a reasonable doubt” standard, it can't later decide to invoke the less stringent “clear and convincing evidence” or “preponderance of the evidence” standards mandated by Title IX regulations. This change would be a violation of your due process rights.

Due Process = Procedural Fairness at Private Universities

When it comes to school discipline, one of the fundamental differences between public and private universities is the right, or lack thereof, to due process. Private schools are typically not considered state actors, meaning the 14th Amendment prohibiting states from depriving “any person of life, liberty, or property, without due process of law” does not apply.

Substantively, courts look to see whether private schools follow basic rules of procedural fairness and common decency. In general, there are typically three ways courts overturn private school disciplinary matters, including if:

• The school decision was “arbitrary and capricious,”
• The school failed to follow its own rules and procedures, or
• The school lacks evidentiary support for its decision.

However, most courts look solely to whether the private school's decision was “arbitrary and capricious.”

Procedurally, in determining what due process a private college or university owes its students, courts tend to look to contract law, treating the university-student relationship as a quasi-contractual matter. Most private colleges and universities have a well-developed procedural process for disciplinary matters outlined in their student handbook or procedures and policies manual. So, courts simply look to the processes outlined by the university to determine whether a student receives adequate due process.

What Does Procedural Fairness Mean?

The idea of procedural fairness is built into the common law that guides contract law. It's based on the long-standing practice of organizations and individuals entering into contracts to treat one another fairly. The parties to any contract have the implied right to “good faith and fair dealing.” Procedural fairness is one reason why courts require universities to follow the processes they promise to students in their written procedures.

Is My Student Handbook a Contract?

Courts tend to treat the private school-student relationship as one based in contract law with a “strong, albeit flexible, contractual flavor.” Dinu v. President and Fellows of Harvard CollegeDinu v. President , 56 F. Supp. 2d 129 (1999). However, this contractual relationship isn't one courts will enforce as stringently as they would in an actual breach of contract matter. Rather, as long as schools follow their rules generally, the courts won't second guess private school disciplinary decisions.

However, in egregious cases, it's entirely possible to challenge a private college's failure to follow procedural fairness. In contract law, the weaker party, in this case, the student, has little or no ability to negotiate the terms of a contract with the stronger university party. In these instances, the courts will consider the imbalance of the bargaining power between the parties to the contract when the “contract” or procedures are ambiguous.

Many schools try to circumvent creating implied contracts with students by adding a disclaimer to their school procedures and policies expressly indicating that the procedures don't create any contractual promises. While this is a nice attempt to sidestep legal obligations, courts won't generally enforce it.

Private Schools Can't be Arbitrary

Courts across the country generally hold that universities can't be “arbitrary and capricious” in their disciplinary decisions. While this standard varies a bit from state to state, it generally means that private schools can't act maliciously or deceitfully. However, proving that a private college has acted arbitrarily and capriciously can be difficult in court. The courts will find a school acted “arbitrarily and capriciously” with serious procedural violations.

In Babcock v. New Orleans Baptist Theological Seminary, a Louisiana appeals court ordered a seminary to award a degree to a student after the seminary declared him “unfit” to receive a degree. 554 So.2d 90 (La. App. 1989). The appeals court called the school's decision “grossly unfair and arbitrary.” Babcock originally sued the school when it notified him only 11 days before graduation that he wouldn't receive a degree. He had completed all of the casework, and the school had sent him a graduation notice. The school didn't want to award him a degree because they had previously put Babcock on probation for beating his wife and expelled him for separating from his wife. Then a court forced the seminary to readmit him after overturning the expulsion.

However, in noting that the seminary's actions were “arbitrary and capricious,” the court observed that the school failed to follow any of their disciplinary procedures contained in the school catalog. The court noted that the catalog was a contract between the seminary and its students. In failing to follow its own rules, the school acted unfairly in withholding a degree from Babcock.

This requirement that schools act fairly and reasonably in disciplinary actions can often mirror the requirements of constitutional due process, depending on the school documents establishing a private school's procedural standards.

Protected Speech at a Private College

Students can face disciplinary action for their speech at some schools if the school considers it offensive. First Amendment free speech protections don't apply to private colleges and universities. Therefore, the Constitution doesn't prohibit private colleges from making rules restricting the speech of students.

However, many state constitutions grant its citizens an affirmative right to free speech. In states with affirmative free speech provisions, the courts sometimes rule that the provision limits the blanket restrictions that private schools can place on free speech. Sixteen states now expressly protect speech on college campuses, although many limit the protections to public colleges and universities.

Last year, President Trump signed an executive order designed to protect free speech on college campuses by requiring all institutions receiving federal funds, including private schools, to comply with existing federal laws and regulations protecting speech. In January of 2020, the Department of Education issued new proposed regulations addressing free speech.

California has one of the most extensive legislative protections for speech on private school campuses. The Leonard Law applies some First Amendment protections to all students at private colleges in the state:

A school district operating one or more high schools, a charter school, or a private secondary school shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

Cal. Educ. Code § 48950 (2011). However, the statute doesn't apply to religious schools “to the extent that the application of this section would not be consistent with the religious tenets of the organization.”

Due Process at Religious Schools

All private schools have the right to create additional rules or policies that govern their student bodies as long as the rules aren't discriminative or violate federal or state law. But many religious schools, such as those associated with conservative churches, mosques, or temples, may include rules in their student conduct codes that don't exist at other private schools. Every family should consider these rules when selecting a religious institution, or any college or university, for your educational needs.

Some rules imposed by religious rules may be discriminatory on their face but are still protected by the First Amendment to the Constitution as the “free exercise” of religion. The First Amendment gives religious schools and institutions wide latitude under the name of religious liberty. For example, some colleges prohibit same-sex relationships, sex outside of marriage, or, more generally, anything not conforming to the ideals of Christian conduct. Some of these rules are quite subjective, but the courts pretty consistently uphold student dismissals on these grounds.

Hire an Experienced Student Discipline Attorney Advisor

The consequences of a disciplinary action on your school record can be serious and long-lasting. It could keep you from enrolling in another school or pursuing a graduate or professional degree. Your college could ban you from campus temporarily or permanently. In some cases, you could lose course credit or your degree. You need to protect your rights and interests from as early as possible in the process. You do not want to wait until a school, for example, sanctions you for a Title IX violation, suspends you for cheating, or expels you for another alleged disciplinary violation, because you have the right to due process from the start. To ensure that you receive the process and fairness to which you are entitled, you should consult an experienced Title IX or student discipline attorney advisor immediately.

If you or your child are facing a disciplinary hearing or proceeding, if someone accuses you or a loved one of a Title IX violation, or if you are facing any school-related issue or concern, you need the knowledgeable help of an attorney advisor as soon as possible and Attorney Joseph D. Lento can help. Mr. Lento is an experienced student discipline and student rights attorney who helps clients nationwide. He has handled thousands of academic, Title IX, and other disciplinary cases and hearings across the country, in addition to fighting school-related injustice. He is skilled in negotiation with both private and public colleges and universities, and can take the fight to court anywhere in the United States as needed when doing so is in a client's best interests.

Contact the Lento Law Firm at 888-536-3686 for a consultation. Attorney Joseph D. Lento works hard to ensure that his clients receive the due process they deserve at school.