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Published: 19-12-2010, 08:24

Disciplinary Sanctions and Due Process Rights

Due process is a central concept in American jurisprudence, rooted in the U.S. Constitution and elaborated in numerous cases involving the discipline of students in higher educational settings. The Constitution guarantees that the government cannot take away a person’s basic right to “life, liberty or property, without due process of law.” With respect to the discipline of students in institutions of higher education, particularly those that are public in nature (private institutions are ordinarily governed by contracts), due process guards against human error and bias while ensuring fairness in governmental actions that threaten students’ lives, liberty, and/ or property interests.

Officials in institutions of higher education have the authority to promulgate and implement their own rules, policies, and procedures. Institutional officials also have the responsibility to ensure that the rules, policies, and procedures are reasonably related to fair and just purposes and are administered in an impartial and unbiased manner. Due process provides the conduit through which the liberty and property rights of students are protected as well as the legal mechanism by which institutions of higher education can be held accountable for violations of the constitutional rights of students.

This entry reviews the development and application of due process in the context of higher education, focusing on the requirements of due process in the context of disciplinary sanctions against students. 

Historical Background

Historically, courts (and parents) bestowed significant independent discretion on officials in institutions of higher education regarding student discipline. As early as Gott v. Berea College (1913), college and university administrators were seen as standing in loco parentis to students; their authority was considered similar to that of educators in K–12. From the early 1900s to the late 1960s, administrators in higher education had autocratic authority over students. During this time, courts rarely, if ever, examined the propriety of administrative decision making, institutional policies, or the fairness of disciplinary actions. 

The broad discretionary authority exerted over students by higher education administrators has diminished significantly since the 1960s. The seminal case establishing the requisite due process that officials have to provide to students in higher education in connection with disciplinary hearings is Dixon v. Alabama State Board of Education (1961). 

In Dixon, the Fifth Circuit held that the Fourteenth Amendment’s right to due process extended to university students who were involved in disciplinary situations. Dixon involved a group of African American college students who were expelled for protesting racial segregation by participating in marches and demonstrations. On the basis of an institutional regulation authorizing expulsion for “conduct prejudicial to the school and for conduct unbecoming a student . . . for insubordination and insurrection, or for inciting other pupils to like conduct,” university officials expelled the students. The Fifth Circuit found that officials violated the students’ due process rights, because the regulation itself was vague, and they did not receive a hearing prior to their expulsion. The court thus applied the due process standard of notice and a hearing to protect the rights of the students. 

Substantive Versus Procedural Due Process

There are two types of due process. Substantive due process requires the content of legislation and regulations to be fair and to advance reasonable governmental objectives. Within the realm of higher education, substantive due process ensures basic fairness of regulations and policies that institutional officials establish and implement. Additionally, disciplinary consequences must have a rational relationship to the facts of cases and must stem from information and evidence presented at hearings. Moreover, administrators who preside over hearings must act in an impartial manner. Procedural due process, which promotes systematic decision making, requires at a minimum notice and a hearing if a significant life, liberty, or property interest is threatened. Deciding how much due process must be afforded to students depends largely on the specific facts of cases and increases as the severity of harm to their liberty or property interests increases. For example, student suspensions or expulsions are serious deprivations of liberty, and therefore they require a higher degree of due process protection. Procedural due process equates to the series of safeguards erected to protect students’ interests before and during disciplinary actions that are taken against them. 

Defining Due Process

The Fourteenth Amendment to the Constitution prohibits the taking away of liberty or property without due process of law. Courts recognize due process claims only if there are recognized liberty or property interests at stake. Protected property interests can include personal or real property as well as tangible or intangible property. By way of illustration, in higher education, a property right may encompass the right to continue a specific area of study, the right to pursue an education, or the right to a room in a residence hall. Before revoking such “property” rights, institutional officials in higher education must afford students adequate due process. 

Similarly, if students’ liberty interests are threatened, they are entitled to due process. In the context of higher education, students possess certain liberty rights, including the right to contract, to acquire useful information, to pursue specified professions, to pursue opportunities for continued education such as admission to law or medical school, and to protect their good names or reputations. 

Dixon extended due process protections to students in higher education. However, there is no bright-line rule denoting what constitutes the requisite due process. Rather, courts frequently apply a balancing test that weighs student interests against the state’s or private interests. The Supreme Court created a three-part balancing test in Mathews v. Eldridge (1976) that requires consideration of 

  1. the nature of the student’s interests that stand to be affected by the official actions, 
  2. the potential consequence to the student balanced with additional steps taken to ensure a fair decision-making process, and 
  3. the potential impact to the college or university balanced with additional procedural steps to be taken. 

Accordingly, the degree of due process that higher education students are entitled to varies based on the facts of specific cases and is more the product of judicial inclusion and exclusion than the application of any clear-cut legal rule. 

Based on the precedent established in Board of Curators, University of Missouri v. Horowitz (1978), there is a distinction made between academic and disciplinary due process. Pursuant to this distinction, academic due process results primarily from academic deficiencies, while disciplinary due process involves nonacademic violations of policies and procedure. Academic due process requires far less due process than disciplinary due process. Thus, when an institutional action is blurred, it is recommended that officials apply the higher standards for disciplinary procedures.

The higher education case that best describes the available due process inclusions and exclusions is Esteban v. Missouri State College (1969). In Esteban, a federal trial court in Missouri maintained the oral notice officials provided regarding the reason for disciplinary action against the students and the limited opportunity that they had to present their side of the events did not constitute sufficient due process prior to their being suspended. The court pointed out that students in higher education should be given written notice setting forth the charges against them at least 10 days prior to their disciplinary hearings. The court also observed that students should be permitted to inspect the documents to be used at hearings and allowed to present their own evidence and versions of the facts. The court was of the opinion that the hearing had to be conducted before a designated administrator who was required to evaluate the facts based on the evidence and render a written decision. Cases following Esteban routinely look to it for guidance in determining higher education students’ due process rights. 

Elements of Procedural Due Process

Notice

Notice is a mandatory element of due process even though the manner in which it is to be provided is flexible. However, the underlying objective of notice is to advise students of the specific charges being brought against them and to allow them to prepare for hearings adequately. Notice may be oral or written depending on the circumstances. Typically, notice includes references to institutional regulations or policies that students are accused of violating while setting forth the facts forming the basis for the charges against them, including the date, time, and place that the violations allegedly occurred. 

According to Weidemann v. State University of New York College (1992), a second essential consideration with respect to notice is timing. This means that students should be given sufficient time to prepare adequate defenses against pending charges. Typically, two to ten days is considered to be reasonable depending on the complexity of a case and the severity of the potential sanctions facing students. 

Legal Right to a Hearing

Another essential element of due process is the right to a hearing. Hearings are required for both substantive and procedural due process. In the context of higher education, procedural due process means that students must be given opportunities for hearings before tribunals such as administrative adjudicating bodies. Even though hearings are mandatory, the composition of adequate hearings varies considerably. Hearings may range from informal to more formal, often depending on the severity of the charges. 

The timing of hearings may also depend on the degree of severity involved in cases. Typically, hearings should precede disciplinary actions. Yet in situations where students alleged committed substantial threats or significant disruption of the academic process, officials may invoke emergency suspensions prior to hearings. In such instances, hearing should occur within several days following suspensions. Full hearings are then required to evaluate whether students are responsible for the alleged actions and in order to impose appropriate sanctions. 

In terms of substantive due process, hearings must proceed before impartial arbitrators. Students charged with violations of institutional rules or regulations should receive fair and unbiased hearings. If adjudicating administrators display bias or partiality, students have the right to challenge the adequacy of hearings. Still, hearing administrators are not rendered as biased solely on their positions within institutions; neither are hearing officers deemed to be partial simply because they have personal knowledge regarding the facts of the cases they review. 

Right to Legal Counsel

There is no definitive rule regarding a student’s right to legal counsel with respect to disciplinary hearings conducted within the context of higher education. Rather, the right to attorney representation depends largely on the nature of the proceeding and the severity of the consequences. Court cases such as Gorman v. University of Rhode Island (1986) and Osteen v. Henley (1993) agreed that banning the participation of attorneys in student discipline hearings does not violate their right to due process. 

While there is no inherent due process right to counsel in higher education, there are situations in which counsel is permitted to advocate on behalf of students. In cases involving additional potential civil or criminal charges, for example, counsel is deemed proper, if not necessary. Similarly, legal representation has also been found to be appropriate in cases where the consequences could result in revocation of students’ advanced academic degrees or where their free speech rights were implicated. Even in disputes where counsel is present, attorneys generally do not exercise the full legal representation typically afforded clients in formal court hearings such as direct questioning or crossexamining of witnesses.

Evidence

Based on Goldberg v. Regents of University of California (1967), the formal rules of evidence are not applicable in student discipline cases arising in higher education, because hearings are administrative rather than judicial proceedings. Even so, students should be able to present evidence to support their positions and refute the charges they face. Again, the extent to which evidence is permitted depends largely on the nature and facts of specific cases. Typically, it is left to the discretion of presiding officers to choose whether evidence is admissible. For example, in Osteen, the Seventh Circuit upheld a presiding officer’s exclusion of unnecessarily repetitive evidence that was not pertinent to the facts at hand and evidence that was not useful to the outcome of the proceedings.

Witnesses

The right to know the identities of witnesses and to confront and cross-examine them is largely dependent on the particular facts involved in a situation. If students contest the charges they face, they have the right to be informed of the names of witnesses. If students do not contest the charges, officials need not disclose the identity of potential witnesses. Similarly, officials need not disclose whether students are capable of defending the pending charges without such knowledge, even if the students contest the charges. With respect to the right to cross-examine witnesses, the Eleventh Circuit ruled in Nash v. Auburn University (1987) that there was no violation of the due process rights of two students who were expelled from veterinary school for violating the Student Code of Professional Ethics. The court affirmed that officials did not violate the students’ due process rights, both because the students were present when witnesses were questioned, and because, although they did not have an opportunity to cross-examine the witnesses, they were permitted to present statements responding to the charges that they faced. The court was satisfied that there was substantial evidence supporting the students’ expulsion for misconduct in connection with an examination. On the other hand, a federal trial court in New York, in Donahue v. Baker (1997), treated the right to cross-examine witnesses as an essential element to due process where the outcome of the hearing depended on the creditability of a sole witness. 

Aimee Vergon Gibbs

See also Board of Curators of the University of Missouri v. Horowitz; Due Process, Substantive and Procedural

Further Readings

  • Friedl, J. (2000). Punishing students for non-academic misconduct. Journal of College & University Law, 26(4), 710–726. 
  • Stevens, E. (1999). Due process and higher education: A systematic approach to fair decision-making. Washington, DC: George Washington University. 

Legal Citations

  • Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78 (1978). 
  • Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961). 
  • Donahue v. Baker, 976 F. Supp. 136 (N.D.N.Y. 1997). 
  • Esteban v. Missouri State College, 415 F.2d 1077 (1969). 
  • Goldberg v. Regents of University of California, 57 Cal. Rptr. 463 (1967). 
  • Gorman v. University of Rhode Island, 646 F. Supp. 799 (D.R.I. 1986). 
  • Gott v. Berea College, 161 S.W. 204 (Ky. 1913). 
  • Mathews v. Eldridge, 424 U.S. 319 (1976). 
  • Nash v. Auburn University, 812 F.2d 655 (11th Cir. 1987). 
  • Osteen v. Henley, 13 F.3d 221 (7th Cir. 1993). 
  • Weidemann v. State University of New York College, 592 N.Y.S.2d 99 (N.Y. App. Div. 1992).
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