This article describes the difficulty of defining how much due process is due to students of higher education who face the loss of a liberty or property interest. Applicable legal definitions and decisions are reviewed, and questions regarding the need for an analysis of consistency among institutions are raised.

How Much Due Process is Due?

De Etta M. Jones and Allison Carroll

INTRODUCTION

Current discourse on due process in higher education focuses on academic and disciplinary concerns. The following questions represent troubling legal issues derived from a lack of consistency in the definition of how much due process is due to students facing the loss of a liberty or property interest in higher education:

1. What constitutes a fair hearing?

2. When and what type of notice is due?

3. Should due process procedures vary depending upon the allegation?

4. Should due process procedures vary depending upon the sanctions which are assumed to be appropriate for the alleged acts?

5. Should students be allowed to have legal counsel with them during a hearing?

6. Should students be allowed to cross-examine other witnesses or at least to confront them during a hearing?

7. Should students be guaranteed a written copy of a final disciplinary or academic decision when there is the potential for loss of a liberty or property interest or actual loss?

8. What type of consistency should exist amongst public institutions regarding due process procedures?

DUE PROCESS

Due process of law implies ìthe right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involvedî (Black, 1968, p. 590). In Goss v. Lopez, the Supreme Court set forth the following minimum requirements for the provision of due process (1) oral or written notice of the charges; (2) an explanation of the evidence if he or she denies these charges; and (3) an opportunity to present his or her side of the story. Goss v. Lopez does not, however, stipulate when this notice should be given nor does it describe what an ìopportunityî to present another side to an allegation entails. Esteban v. Central Missouri State College (1967) provides greater detail regarding due process requirements and a higher level of protection than Goss v. Lopez. Esteban held that due process requires the following:

1. A written statement of the charges, at least ten days before the hearing;

2. A hearing before the person(s) having the power to suspend or expel;

3. A chance for advance inspection of any affidavits or exhibits the college will use at the hearing;

4. The opportunity to be accompanied by an attorney during the hearing for advice;

5. The chance to present his or her side of the story via affidavits or witnesses;

6. The right to hear the evidence against the student and the right to cross-examine witnesses;

7. A finding based upon the evidence presented during the hearing and no other evidence;

8. A written statement of the findings; and

9. The right to record the hearing.

Although Esteban provides more detail than Goss v. Lopez, there are still areas of ambiguity regarding how institutions of higher education should fulfill the requirements it describes. As Kaplin and Lee (1995) point out, ìthere is no clear constitutional requirement concerning how much advance notice the student must have of the charges. As little as two days before the hearing has been held adequate. . . In general, courts handle this issue case by case, asking whether the amount of time was fair under all the circumstancesî (p. 487).

Due process also does not require an open or public hearing. According to Kaplin and Lee (1995), ìcross-examination, the right to counsel, the right to a transcript, and an appellate procedure have not generally been constitutional essentials, but where the institutions have voluntarily provided these procedures, courts have often cited them approvingly as enhancers of the hearing's fairnessî (p. 488). Lastly, institutional obligations of due process are likely to increase if the conduct in question is also the subject of a criminal court proceeding (Kaplin and Lee, 1995).

PROCEDURAL AND SUBSTANTIVE DUE PROCESS

The Supreme Court, in determining procedural and substantive due process, distinguishes academic expulsion from disciplinary expulsion. Because the determination of whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information, ìthe due process clause does not require that a student be given a hearing before the schoolís decision-making body in connection with an academic dismissalî (McCarthy, 1985, p. 101).

The Pennsylvania federal district court, however, has ruled that ìprior to a studentís dismissal from a program he was entitled to a hearing so that he could explain the reasons for his poor scholarship and supply information which might convince the administration that his future performance would be satisfactoryî (Ross v. The Pennsylvania State University, 455 F. Supp. 147 (1978)). The same court recognized that a hearing is not required in academic dismissals where students simply fail to meet clearly established requirements.

Substantive due process limits the courtís role in protecting due process rights to ìjudging whether school authorities were motivated by malice or bad faith or acted in an arbitrary or capricious manner in that there was not rational basis for the decisionî (McCarthy, 1985, p. 102-103). The Michigan federal district court held that ìthe judiciary can only scrutinize the objective factors which may have tainted or otherwise affected the decision, and not the property of the decision itselfî (McCarthy, p. 103). It has also been held that in cases involving substantive due process, the student has the burden of proving that an academic assessment is unjust.

Students may argue a claim of arbitrary action because academic assessments have been based in part on subjective judgments by faculty members. The courts have not generally ruled in favor of such an argument. ìAn Ohio federal district court reasoned that a certain degree of subjectivity in personal interviews used as a basis for admitting students to a veterinary degree program did not constitute arbitrary action in violation of substantive due process rightsî (McCarthy, 1985, p. 104).

Mc Carthy (1985) points out that the courts have intervened in academic decisions if school authorities have not followed their adopted policies or procedures or have acted arbitrarily or in bad faith: ìAlso, academic dismissals have not been annulled where institutions have not applied standards in a uniform manner or have not properly advised students of admissions criteria or of their deficiencies in meeting degree requirementsî (McCarthy, p. 106).

Kaplin and Lee (1995) explain further that ìwhenever an institution has applied procedures that apply to the imposition of sanctions, the law will usually require that they be followedî even in the case of private colleges and universities (Kaplin and Lee, p. 484). Hence, the major test for violation of substantive due process is whether or not the institution acted in an arbitrary or capricious manner or if its sanctions imposed have been deemed inconsistent with its own regulations and past practices.

FIFTH AND FOURTEENTH AMENDMENTS

The right to due process of law is ensured through clauses in constitutional amendments. The Fifth Amendment reads in part, ìNo person shall. . . be deprived of life, liberty, or property, without due process of law. . . î (Kaplin, 1978, pp. 464-465). ìThe Fifth Amendment was created as a way to provide limitation for federal governmentî (Norton, 1965, p. 213). The Fourteenth Amendment was created to extend the Fifth Amendment due process provisions as applicable to the states (Kluger, 1977) and reads in part, ìnor shall any State deprive any person of life, liberty, or property, without due process of law. . .î (Kaplin, p. 466).

STATE ACTION

The Federal government regulates the constitutional right to due process only in cases where state action exists. Insofar as private colleges and universities are concerned, the determination of state action has been addressed in several cases. In Evans v. Newton, the United States Supreme Court defines state action as follows: ìConduct that is formally ëprivateí may become so entwined with governmental policies or so impregnated with a governmental character so as to become subject to constitutional limits placed upon state actionî (Evans v. Newton, 382 U.S. 296 (1966)).

Hollander (1978) summarizes that ìprivate institutions. . . must meet only contractual or statutory requirements, and are not usually subject to constitutional mandates such as the Fourteenth Amendment requirements for due process and equal protectionî (p. 10). Thus procedural due process protections are applicable to private institutions only if there exists a judicial finding of state action.

Three approaches have been used to determine state action in allegations of due process violations involving private institutions (Habecker, 1986). The first is the delegate power approach whereby the government actually delegates a particular task to the private college or university on the governmentís behalf. A second approach used in the attempt to show state action is the governmental aid or assistance received by the private institution (Habecker, 1986, p. 5). The third approach to showing state action is the public character or function approach (Kaplin and Lee, 1995, p. 23). This approach suggests that ìthe function of private higher education is so essentially public that a governmental standard should judge its performanceî (OíNeil, 1970, p. 168). While there are other approaches which argue for the existence of state action, these three approaches are the primary vehicles which have carried the state action argument regarding private colleges and universities (Habecker, 1986).

Another component of determining state action is whether or not racial or sexual discrimination is involved. In Powe v. Miles (1968), the court specifically noted that it would have been more willing to find state action if racial discrimination had been involved because ìdiscrimination may stand somewhat differently, because of the peculiar offensiveness of the stateís taxing all citizens for objectives from the benefits of which a particular category is arbitrarily excluded or disadvantagedî (Powe v. Miles, p. 82). It would appear, through this and several similar cases, ìthat whenever litigation in the private college involves as part of the complaint an allegation of racial discrimination, there is a likelihood that courts may find state action as part of the complained proceedingî (Habecker, 1986, p. 15).

PROPERTY INTERESTS

Piccozi (1987) states that ìthe Fourteenth Amendment does not create interests in property. Rather, property interests ëare created and their dimensions are defined by existing rules of understandings that stem from an independent source such as state law--rules or understandings that secure certain benefitsíî (1987, p. 2136). In contrast, Hart v. Ferris State, 557 F. Supp. 1379 (Mich. 1983) concludes that ìit is undisputed that the threat of suspension or expulsion implicates plaintiffís property and liberty interests in public education and reputation, and that such interests are within the purview of the due process clause of the Fourteenth Amendment.î In defining the full scope of requirements for meeting the test of property interest, the Board of Regents v. Roth stated that:

To have a property interest in a benefit, a person must clearly have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. (408 U.S. 564 (1972))

For institutions of higher education, a contract is entered into by accepting tuition and providing educational resources in return. This contract gives substance to the studentís expectation of graduation. ìIf the expectation were ëunilateral,í the university would not have enrolled the student at allî (Piccozi, 1987, p. 2137).

LIBERTY INTERESTS

ìIn Wisconsin v. Constantineau, the Supreme Court stated that liberty interests subject to the protection of due process are present ë(w)here a personís good name, reputation, honor or integrity is at stake because of what the government is doing to himíî (Piccozi, 1987, p. 2137, from 400 U.S. 433 (1971)). However, in Paul v. Davis, the Supreme Court held that not all defamation infringes sufficiently upon liberty interests to trigger procedural due process protection. ìRather, stigma must be accompanied by the deprivation of a right previously held under state law, or result in some other alteration of legal status, such as employmentî (Piccozi, p. 2137, from 424 U.S. at 708-09).

The most significant alteration of an expelled studentís status is his or her inability to enroll at another institution. Education, in this example, is held as a liberty interest. There is also the possibility of an economic wound and/or emotional distress which is incurred by dismissal.

CONSISTENCY IN DUE PROCESS PROCEDURES

Two studies have shown that due process procedures for disciplinary hearings are not consistent among institutions of higher education. Ludeman (1989) sampled 208 institutions of higher education and found that 85% had a formal structure for adjudicating academic grievances. In a study of 83 public institutions, Golden (1980) found that:

1. 37.9% did not allow students to have legal counsel during a hearing

2. 36.2% did not allow cross-examination by the student

3. 60.3% did not guarantee the student the right to confront his or her accusers

4. 55.2% did not guarantee the student an impartial decision maker

5. 75.9% did not guarantee the student written findings of fact (as cited in Piccozi, 1987, p. 2149)

Baker (1992) points out that countervailing interests such as administrative costs and the potential deprivation of the accused student must be balanced and will be balanced differently for different institutions. Thus different institutions will offer different levels of due process based upon the criteria set forth in Matthews v. Eldridge, 424 U.S. 319, 335 (1976):

1. The private interest to be affected;

2. The risk of erroneous deprivation under current procedures and probable value of additional procedures; and

3. Governmental interest, the function of the organization or agency involved, and the level of burden which requiring additional procedures would impose.

Consistency between colleges and universities would be difficult to enforce insofar as institutions vary in the amount of funding and personnel available to administer a consistent standard of due process. Thus the courts have recognized the need to respect the potential burden that increased administrative costs and potentially negative effects on the educational process which an increase in the number and content of adversarial hearings could entail. During this era of decreasing resources and increasing litigation, administrators in higher education could decide that the standard of due process afforded students must vary with the allegation and potential sanction.

QUESTIONS AND CONSIDERATIONS

One consideration not found in a review of the relevant literature is the role potential sanctions play in the determination of how much process is due; if suspension or expulsion is a possibility, it appears that more process is due because of the increased level of harm which erroneous deprivation of a liberty or property interest that is suggested by the increased severity of the misconduct (Cole, 1994). ìA public college or university contemplating a student suspension for non-academic misconduct generally need not give the student the same due process it would for a dismissalî (Cole, 1994, p. 16). This advice is troubling, however, because administrators are enjoined to decide how much process is due based upon a potential sanction of an alleged act or lack thereof which has not yet been proven.

Unless a college or university can guarantee that it will only consider evidence which it gathers in advance of a hearing (formal or informal) and which it provides to the defendant in advance, any evidence entered into the hearing without the defendantís knowledge could magnify the case and lead to the imposition of a harsher sanction than was originally supposed or perhaps to a stigmatization; this in turn suggests that more ëdue processí should have been provided as the potential loss is now greater. Establishment of due process procedures which consider the possibility that a student initially charged with an action punishable by suspension could be ultimately found guilty of an act which is punishable by expulsion, would be a fair and practical policy.

Should there be a clear and consistent standard of due process guaranteed at both public and private institutions of higher education? Would clearer guidelines from the Supreme Court assist with such an endeavor? Piccozi (1987) argues that universities would better meet the dictates of due process and fundamental fairness if they adhered to a system which distinguishes between minor offenses, major offenses, and felony offenses, and which recognizes that the potential penalty should be given primary consideration when determining how much due process is due.

Piccozi (1987) also points out the dangers inherent in some university systems in which an administrator plays the roles of police, prosecutor, judge and jury, whereby ìthese functions no longer check each otherî (p. 2141). He suggests that in the interest of fairness, an impartial Hearing Officer should review only those cases which a faculty and student Investigations Committee suggest and that this Hearing Officer should have no prior contact with the matter.

Baker (1992) proposes eight research questions which, if answered, might provide insight into the question, ìHow much due process is due?î These are:

1. To what extent have colleges and universities complied with the judicial mandate of Dixon and later cases by maintaining adversarial proceedings for resolving serious disciplinary complaints?

2. To what extent do colleges and universities provide more than minimum procedures required under the Constitution?

3. To what extent are college students falsely accused of misconduct at postsecondary institutions?

4. To what extent do college students accused of misconduct dispute the allegations when confronted by college officials?

5. When the facts of a disciplinary hearing complaint are disputed by the accused, do the investigator and hearing officer/board properly weigh the evidence? Are administrators swayed by arbitrary or irrelevant factors such as public relations?

6. Are officials at schools that employ a structured judicial procedure more likely to conduct a thorough investigation than officials at schools that do not provide a system offering personal incentives?

7. Do college officials make consistent and nonarbitrary judgments regarding sanctions once the facts of a case have been accurately determined?

8. Can administrative accountability (i.e. accurate determinations of fact) be achieved by means other than adversarial procedures? (p. 5-6)

In a review of the relevant literature, Baker (1992) found that ìrelatively few articles or books have been published that address the questions presented above. Several commentators have addressed issues #1, and #2, and a few have discussed administrator competency (#5). But the others have received little attentionî (p. 6). Addressing these issues may provide justification for maintaining current ëinformalí due process requirements; it cannot be assumed, however, that research on these issues would not reveal a need to further define the meaning of fundamental fairness and a need to guarantee certain standards of due process which go beyond those laid out in Dixon.

CONCLUSION

While administrators of institutions of higher education may share the goal of providing a fair and consistent judicial system, do they also share the goal of agreeing upon a definition of how much due process is due? Perhaps the issues raised here will encourage individuals and institutions to respond to Baker's questions and take our nation one step closer to defining how much due process is due to students in institutions of higher education.

REFERENCES

Alexander, K., & Solomon, E.S. (1972). College and university law. Charlottesville, VA: The Michie Company.

Anson, R.J., & Kuriloff, P.J. (Eds.). (1975). Studentsí right to due process: Professional discretion and liability under Goss and Wood. Washington, D.C.: Capitol Publications.

Baker, T.R. (1992). The meaning of due process 30 years after Dixon: Rhetoric but little research. NASPA Journal, 30 (1), 3-10.

Board of Regents v. Roth, 408 U.S. 564, 677 (1972).

Cole, E.K. (1994). Selected legal issues relating to due process and liability in higher education. Council of Graduate Schools: Washington, D.C.

Evans v. Newton, 382 U.S. 296 (1966).

Gaspar v. Bruton, 513 F.2d 843, 851 (10th. Cir. 1975).

Golden, E.J. (1982). Procedural due process for students at public colleges and universities. Journal of Law and Education, 11 (3). 337-59.

Goss v. Lopez, 419 U.S. at 579 (1975).

Grove v. The Ohio State University College of Veterinary Medicine, 424 F. Supp. 37 (S.D. Ohio 1976).

Habecker, E.B. (1986). Procedureal Due Process in Private Colleges and Universities. U.S. Department of Education.

Habecker, E.B., & Miller, J.L., Jr. (1985). Legal protections for people in private colleges and universities: a primer. North Central Association Quarterly, 59 (3). 346-51.

Hart v. Ferris State, 557 F. Supp. 1379 (Mich. 1983).

Hollander, P.A. (1978). Legal handbook for educators. Boulder, CO: Westview Press, Inc.

Kaplin, W.A., & Lee B.A. (1995). The Law of Higher Education. Jossey-Bass: San Francisco.

Leahy, J.E. (1992). Liberty, justice and equality: How these constitutional guarantees have been shaped by United States Supreme Court decisions sincer 1789. Jefferson, N.C.: McFarland & Company, Inc.

Ludeman, R.B. (1989). The formal academic grievance process in higher education: A survey of current practices. NASPA Journal, 26 (3). 235-40.

Matthews v. Eldridge, 424 U.S. 319, 335 (1976).

McCarthy, M.M. (1985). Legal challenges to academic decisions in higher education. College and University, 60 (2). 99-112.

Moreno v. Texas Southern University, 573 F. Supp. 73 (S.D. Tex. 1983).

Murray, C. (1994). Campus justice: West Virginia Wesleyan case questions fairness of judiciary boards. Black Issues in Higher Education, 11 (9), 6-9.

National Association of Student Personnel Administrators, Inc. (1993). Student rights and freedoms. Joint statement on rights and freedoms of students.

Norton, T.J. (1965). The constitution of the United States. New York, N.Y.: Committee for Constitutional Government, Inc.

OíBrian, D.M. (1987). What process is due? Courts and science-policy disputes. New York, N.Y.: Russell Sage Foundation.

OíNeill, R. (1970). Private universities and public law. Buffalo Law Review, 19 (155), 168- 169.

Paul v. Davis, 424 U.S. 693 (1976).

Piccozi, J. M. (1992). University disciplinary process: Whatís fair, whatís due, and what you donít get. Yale Law Journal, 96, 2132-2161.

Ross v. The Pennsylvania State University. 455 F. Supp. 147 (1978).

Shea, C. (1994). A matter of honor. Chronicle of Higher Education, 41 (8), 55-56.

Wisconsin v. Constantineau, 400 U.S. 433, 437n (1971).

Young, D.P. & Gehring, D.D. (1986). The college student and the courts. Ashville, N.C.: College Administration Publications, Inc.

Allison Carroll (ë96) is the International Student Advisor at Babson College outside of Boston. DeEtta Jones (ë96) is the Program Officer for Diversity at the Association of Research Libraries in Washington, DC.