Student Discipline in Higher Education
by
Joseph C. Maya on Jan. 30, 2024
Summary: Over the past few years, college students and graduate students have faced increasingly complex disciplinary rules and codes of student conduct. This is partly because campus-related disciplinary issues (in particular those related to hazing, harassment, and bullying) now frequently earn a significant amount of media and community interest. Especially because of the increasing scrutiny, colleges and universities must balance demands for punishment and accountability against students’ equally important rights to fairness and transparency with respect to the process and standards by which student discipline is meted out. In Connecticut and elsewhere, the most significant factor in determining the existence and scope of students’ procedural and substantive rights is whether the school at issue is a public or private university.
Student Protections in Public vs. Private School
It is settled law that institutions of higher education that are considered “public” schools must afford constitutional protections to students accused of disciplinary violations, since they are considered “state actors” and the students’ educational progress is considered a protected liberty and property interest that triggers constitutional due process protections.
Separately, students at public schools are protected by internal school rules and guidelines, such that a school’s violation of its internal disciplinary process may properly be the subject of a breach of contract claim. (While constitutional due process and internal requirements may overlap, due process may impose requirements that go beyond school policy.)
By contrast, “private” colleges and universities are generally not subject to constitutional due process requirements. This means that, as a rule, students at these institutions are protected by internal school rules and guidelines, but not by constitutional due process. There are nuances, of course, but this important distinction comes as a surprise to many private school students and may significantly narrow the options that are available to private school students.
Of course, the process protections and remedies available to a private school student depend on what the particular private school’s internal documents provide.
Due Process Requirements and Elements
The scope, meaning, and requirements of “due process” can be difficult to determine, as well. As one Connecticut court put it: “the procedures employed in disciplinary matters must be tested to the extent that they comport with the requirements of fundamental fairness. The traditional common law adversarial method need not be followed as long as the individual has had an opportunity to answer, explain and defend.”
It is important to note that due process in the context of educational discipline is not co-extensive with due process in the criminal context. In general, there is no per se right to have counsel present in this context, nor is there a per se right to an appeal of an adverse decision. In fact, courts considering due process requirements in this context have afforded a significant amount of latitude to schools in conducting disciplinary matters. Very generally, the basic elements of due process have been held to include:
(1) Notice of the nature of the charges. (This is meant to provide an accused party with sufficient details and clarity to allow him or her to respond to the charges and prepare a defense.)
(2) An opportunity to challenge witnesses and produce witnesses on the accused student’s behalf.
(3) An impartial hearing and decision-maker. (Depending on the circumstances, this may include a requirement that the school make factual determinations supporting its disciplinary decision.)
Understanding Student’s Rights when Facing Disciplinary Action
Regardless of a student’s particular circumstances, it is important for any student faced with disciplinary issues to understand what procedural and substantive rights are available.
The most advantageous time to consider these issues is before—not after—disciplinary processes takes place. Attacking a bad or unfair result or issues about process and procedure after the fact may be an option, but the practical difficulties are significant, and putting any accused student back on track for graduation based upon a challenge to an unfavorable result can be much more challenging.
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