Due Process Higher Education

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Due Process in Higher Education
The United States Constitution is the highest law in the United States. It establishes the form of the national government and defines the rights and liberties of the American people. Under the Fourteenth Amendment of the United States Constitution, no state may “deprive any person of life, liberty, or property, without due process of law.” Students attending public institutions of higher education are entitled to these rights. The Due Process Clause serves as the primary external source of procedural requirements for public institutions. “The Due Process Clause guarantees more than fair process, and the liberty it protects includes more than the absence of physical restraint” (Bach, 2003, p. 31). This paper will focus on rights afforded students, as required by due process, within the context of student suspensions and expulsions. It also describes the applicable case law associated with due process rights for students in higher education. Due Process

There are two forms of due process, substantive and procedural. Both forms of due process must be considered when a public institution contemplates dismissing a student for academic or behavioral reasons. Substantive due process means that the rule itself must be fair and the substance of the decision must be sound, not arbitrary and capricious (Garner, 2004). “Under substantive due process, students cannot be disciplined for constitutionally protected actions, or for actions which the government has no legitimate interest in punishing” (Bach, 2003, p. 31). Institutions have a right to expel, suspend or issue sanctions for misconduct or academic inadequacies. In these situations students must be afforded the rights guaranteed by the United States Constitution. Acting as an arm of the state, public institutions are required to provide a certain level of due process and other constitutional rights. Private institutions, however, are not required to provide the same level of safeguards. While students at private institutions may not have a constitutionally protected property interest, they nonetheless hold important contractual interests and deserve to be treated with the fundamental fairness that is at the heart of the due process protections of the Unites States Constitution (Bach 2003, p. 6). Leading Case Law

Dixon v. Alabama State Board of Education (1961) was the first case to recognize a university student’s right to due process in a disciplinary hearing. Alabama State College expelled nine black students, without notice and without benefit of a hearing, after the students conducted sit-ins at a public courthouse restaurant that refused to serve blacks. The Fifth Circuit Court of Appeals, in Dixon v. Alabama State Board of Education (1961), held that students at public universities were entitled to at least fundamental due process. This includes a notice of the charges, a hearing, notification of witnesses and the results of the hearing. The Court held that the institution must establish reasonable grounds for its disciplinary actions through procedural guidelines that are based on “fundamental principles of fairness” (Dixon v. Alabama State Board of Education, 1961). The notice and hearing provides an opportunity for both sides to be heard and protects the rights of all involved. Esteban v. Central Missouri State College (1969) followed Dixon and provides the highest level of protection and due process requirements. The involved students had been suspended for two semesters for participating in protest demonstrations. The court held that the students had not been afforded procedural due process and detailed nine protections. Those protections included: a written statement of the charges at least ten days before the hearing, a hearing before the person(s) having the power to suspend, the opportunity to examine evidence the college intended to present at the hearing, the right to bring counsel to advise, the...
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