Joel Dillard & Associates

Representing Working People

The Due Process Rights of College Students

The due process rights of students - and college students in particular - is an often murky area. This is no real surprise: Constitutional law is, unfortunately, among the least rational and clear of all areas of law. But here you can learn at least some general concepts and parameters.

State Action

The first concept to bear in mind is that - with the exception of the Thirteenth Amendment (slavery) - the Constitution only limits state action. This means that your private colleges and universities, like Belmont and Mississippi College, are not restricted by the Constitution. This is why - in case you were wondering - private colleges can be religious while e.g. school-mandated prayer is impermissible in public colleges. This does not mean that private schools can do whatever they want, but it means that the discussion which follows is inapplicable to them. This discussion will be limited to public schools like Ole Miss or Jackson State.

Is a college education property?

The due process clause prohibits the state from depriv[ing] any person of life, liberty, or property, without due process of law. And so the first question is whether a college student has any liberty or property interest in their studies. Let's start with property.

Because property itself is a creature of state law - your rights to your land, your car, your gun: all are created (and limited) by state law - the answer will depend on the particular laws of your state.

Thus, in Mississippi, the Mississippi Supreme Court has held that the cases involving public universities demonstrate that a student's interest in attending a university is a property right protected by at least the procedural protections of the due process clause. UMMC v. Hughes, 765 So. 2d 528, 538 (Miss. 2000).

In Texas, by contrast, the Courts have ducked the question and so it is still not entirely clear whether college students have a property right in college. University of Texas Med. School v. Than, 901 SW 2d 926 n.1 (Tex. 1995)

The liberty interest in college education

The liberty interest has been recognized based on harm to a college student's reputation and future prospects because of the expulsion: [W]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of due process must be satisfied. Goss v. Lopez, 419 U.S. 565, 574 (1975). This suggests that, to some extent, the scope of the liberty interest will depend on what the student is accused of doing, and how serious the discipline being imposed will be.

Disciplinary vs Academic actions

Disciplinary actions are one thing. But the Supreme Court has cautioned that the courts should not be involving themselves too heavily in second-guessing the academic decisions of public schools. As the Court said in a case involving a graduate medical school, court review of academic decisions would further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. Board of Curators of Univ. of Mo. v. Horowitz, 435 US 78 (1978)

The upshot is that academic dismissals are not really subject to much due process under the Constitution.

But what exactly is an academic action? It would seem obvious: flunking out. But unfortunately, certain courts with a special hostility to students have hooked on to a minor footnote in Horowitz and blown it out of all proportion to suggest that virtually everything is academic and nothing disciplinary. Everything from lying to profanity to tardiness have - from time to time - been considered academic by certain courts. As one court admitted: The Court recognizes that this definition of academic dismissal is very broad and leaves a finding of disciplinary dismissal to a narrow range of cases. It justified its decision on pure policy grounds - again, trying to stay out of the school's business. These decisions are - at best - poorly reasoned. But that doesn't mean that they won't carry the day sometimes. Real people lost those cases.

What process is due?

Assuming this is a real disciplinary expulsion case coming from a state where college students have recognized property rights, the next question is what process is due. It depends on the gravity of the discipline - a suspension requires only notice and a chance to respond in an informal give and take with the student, as the Supreme Court noted in Goss.

But an expulsion - particularly an expulsion on extremely serious charges - may require more. The analysis is pretty vague, and involves the weighing of three factors:

  1. How serious the threatened harm to liberty/property;
  2. How useful particular procedural tools would be at making sure the right result is reached;
  3. How annoying, expensive, or time-consuming the procedural tool would be to use.

This is a paraphrase, of course, but these factors come from a seminal case called Mathews, and unfortunately, they are just as wishy-washy and unpredictable as they sound in the actual application. As you can guess, with such open-ended factors to consider, the judge ends up deciding the case more along the lines of the judge's own inclinations toward the parties, since any result whatever can be clothed in factors like these.

Good facts and good lawyering are your best bet at success, but there are no guarantees whatsoever in this area of the law.


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