In 2022, the Ohio State Legislature passed SB 135, a law that enacts several changes to public higher education within the state. This new law affects the due process rights of students and the free speech rights for both students and faculty.
Due Process
The new law, which went into effect in July 2022, has specific provisions for how colleges and universities must communicate with students subject to disciplinary action. These rules will apply to all public institutions of higher learning within the state. Private colleges and universities are not required to follow these new rules.
Unlike other parts of SB 135, the legislation did not explicitly state that a school must make public these new policies.
The new law requires that schools provide the following information for students who are subject to disciplinary action:
- A college or university must provide the student with:
- Notice of the disciplinary action
- Reasons for the disciplinary action
- Student's right to appeal
When a student chooses to appeal, the appeal must be fair and impartial and occur within a reasonable time
Ohio University
Ohio University, the oldest publicly chartered university in the state, provides an example of how a university may choose to incorporate these new rules into its policies. The university includes notification standards for student discipline as part of its Student Code of Conduct.
Ohio University's code covers not just students but also student groups and organizations as entities that may face allegations of misconduct. Whether an individual or group, they will first be scheduled for a mandatory community standards conference. Throughout the process, the student or organization facing disciplinary action must receive written notification.
For the community standards conference, the written notification will include:
- A summary of the initial complaint
- Specific charges
- Statement of rights and responsibilities
- For more serious violations, a warning that they may face suspension or expulsion
Depending on the outcome of the conference, the student may next attend either an administrative hearing or a university hearing board.
If a disciplinary action advances to a hearing, the Code of Conduct, similar to the state law, requires that it occur within “a reasonable period of time” after the initial conference.
A hearing notification must include:
- The hearing's date and location
- Specific charges
- Statement of rights and responsibilities
- For administrative hearings, the hearing officer's name
Right to Appeal
Ohio University's Code of Conduct, as required under AB 135, also includes information on a student's right to appeal. Sexual misconduct allegations have a separate section.
All other appeals must be made within five working days and be in writing. They must state a reason beyond disliking the hearing's outcome, such as disproportionate sanctions or new information that would not have been available before or at the hearing. The school will notify the student of the outcome of the appeal within a reasonable period of time.
While other public institutions may differ in how some specifics or where they publish this information, Ohio University provides an example of how Ohio schools will fold these changes into their existing policies.
Changes to Free Speech Law
AB 135 also includes new rules for students and faculty regarding free speech. In August 2022, the Ohio State University Board of Trustees passed an interim free speech policy. The university's new policies are modeled closely on the new state laws.
The new law explicitly states that public colleges and universities, in addition to amending their policies to align with the new law, may choose to pass any other limitations on free speech, expression, and assembly that do not violate the First Amendment.
The new law provides several examples of policies schools may wish to adopt. Two of the given examples:
- Teachers may include content restrictions that are “reasonably related” to a legitimate educational purpose
- The new law should not be interpreted to allow students “the right to disrupt previously scheduled or reserved activities occurring in a traditional public forum”
Whether schools adopt some of these suggestions remains to be seen. Ohio State University, for example, has an interim policy in place to comply with the law. The revised version will include details on how the school will implement the rules on handling complaints of free speech violations by employees.
New Complaint Process
Ohio now requires that all public colleges and universities create a system by which members of their communities can report when employees violate the new free speech law. Such violations include negative impacts on a student's grade that is based on the content of the student's speech and not “ordinary academic standards of substance and relevance.”
The college or university must investigate the complaint and conduct a hearing. If the hearing finds a violation did occur, the matter will be passed along to the school's board of trustees. They will determine the outcome of the violation and how to prevent that violation from occurring again.
Reporting Process
Public colleges and universities in Ohio must also now file an annual report with the Chancellor of Ohio's Department of Higher Education. These reports must list the number of submitted complaints and how the school handled them from investigation to resolution.
Concerns about AB 135
During hearings, some organizations expressed concern with parts of the new law. Regarding student speech, some of the potential issues include:
- No protection against harassing speech
- No limitations on a school's ability to punish a student for speech that occurs outside of school and in their capacity as private individuals
For faculty and staff speech, the legislature's failure to differentiate between students and faculty, including the potential power imbalance between teachers and students, was raised as a potential problem. That faculty and staff now face potential disciplinary action for free speech is also an area of concern.
Understanding the New Law
The 2022-2023 school year, which is the first that these new policies are in place, will give an idea of what these new laws mean for students, faculty, and staff at public universities in Ohio. Formalizing the notification procedure for students facing disciplinary action should provide clarity.
The new rules on free speech, including the hearing process for state employees, will require longer to determine their impact. Hiring qualified legal counsel who works nationwide to defend the rights of students, staff, and faculty at colleges and universities can be to your benefit.
If you're facing disciplinary action stemming from Ohio's new laws, you need the support of a legal team experienced in defending student and faculty rights. Contact the Lento Law Firm at 888-535-3686 or online.
