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The following selection is excerpted from �鶹��ýIOS’s Guide to Due Process and Campus Justice.

Due process in American law

To receive the fundamentally fair procedures to which you are entitled, you need a basic understanding of (1) due process in the non-university criminal justice system and (2) the legal and moral theories behind the ways due process does and does not apply to college disciplinary procedures.

Due process has evolved over the centuries as a way to ensure that accusatory proceedings produce accurate and truthful results. This is one of the most vital components of a free, decent, and fair society. The accumulated experience of countless cases — dating all the way back to medieval England — has taught us that due process (i.e., the process that is “due” or “owed” to each citizen) is essential to ensure the best chance of learning the truth during the trial process.

For example, we have learned that juries stand the best chance of getting to the bottom of complicated factual matters if the accused or her lawyer is given an opportunity to ask questions of the accuser and of hostile witnesses. How comfortable does an accusing witness appear as he or she looks the accused in the eye and testifies? How credibly does the accusing witness respond to hard questions posed by a skilled cross-examiner? These are not “technicalities,” but rather the essential components of fair decisions and justice. The jurisprudence of due process is concerned with identifying specific procedures that are actually effective in discovering the truth.

Procedural due process

Procedural due process is a legal term that refers to the specific rules that govern how an accusatory proceeding is carried out — in other words, the steps by which a case is “tried” in order to determine the truth or falsity of an accusation. For example, procedural due process includes the rules governing the accused’s rights to question witnesses who testify against him, as well as a defendant’s right to be tried by a jury of her peers. These protections reflect society’s solemn commitment to the importance of obtaining an accurate result when a citizen stands accused. (While procedural due process rights are of greatest interest to you as a student accused of a disciplinary infraction, due process also confers another set of rights — substantive due process rights.)

The right to procedural due process in contemporary America comes from the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Amendment’s due process clause limits the power of the federal government and its institutions, while the Fourteenth Amendment’s due process clause restricts the power of state governments. As a practical matter, most of the restrictions on the federal government’s power over the rights of citizens also apply through the Fourteenth Amendment to state government.

Substantive due process rights are those that protect a party from unreasonable, excessive, or uncivilized treatment or punishment. Freedom from punishment for certain personal decisions and freedom from invasion of privacy are examples of such rights.

A common misconception is that due process protections apply only in the context of criminal trials. In fact, these constitutional provisions guarantee that the federal and state governments, respectively, may not deprive any person “of life, liberty, or property, without due process of law.” In the educational context, your interest in your diploma and in the value of a clear academic record establishes a property right, and your interest in your reputation and good name establishes a liberty right.

Each of the tens of thousands of court opinions that have interpreted these constitutional guarantees basically proceeds in a simple two-step manner:

First, the court looks to see whether due process applies — that is, whether a person’s life, liberty, or property is at risk because of something the government is doing.

Second, if the person is entitled to due process, the court determines what process is due to the defendant under the particular circumstances.

�鶹��ýIOS's Guide to Due Process and Campus Justice

This �鶹��ýIOS Guide informs readers about the appropriate (and inappropriate) methods by which university administrators address issues of academic and non-academic misconduct.

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Due process is flexible. How much process is due to the accused depends largely on the context. As the Supreme Court held in , courts must consider three factors to see what particular protections are required in a given situation:

1. What’s at stake for the accused? What does she or he stand to lose if found guilty?
2. Under the current procedures, how significant is the risk that the accused will be wrongly punished? Would more safeguards reduce this risk?
3. How costly and time-consuming would the new protections be for the government?

Some situations, such as the criminal trial of a person charged with murder, obviously require the greatest due process. A guilty finding may result in the defendant being deprived of liberty or even life. Since the stakes are so high, society has a clear interest in making sure a just, reliable result is reached. Other situations, like contesting tickets in traffic court, require far, far fewer procedural protections. Disciplinary tribunals for public college students fall somewhere between these two poles. While still significant, the stakes in college hearings are lower than those in criminal hearings, and it would be costly and time-consuming for colleges to afford students all the rights afforded criminal defendants. Still other situations, such as a student facing suspension for poor academic performance, require even fewer safeguards, as courts have generally taken a hands-off approach to colleges’ academic decision-making.

Procedural protections in disciplinary cases

University officials often say that college disciplinary proceedings are “educational,” not punitive. As a result, they argue that students in college disciplinary proceedings are not entitled to procedural protections. But courts have disagreed. The law is clear: Due process protections are required for students facing disciplinary hearings at public universities. As noted above, people are entitled to due process rights whenever they have “liberty” or “property” interests at stake — and both interests are most certainly at stake in public university disciplinary hearings.

Liberty and property interests

The Supreme Court of the United States has held that “liberty interests” are involved (lawyers would say “implicated”) whenever a person’s good name, reputation, honor, or integrity is at stake. When a disciplinary board finds a student guilty of non-academic misconduct, the impact can be devastating for his or her future — academically, professionally, and even socially. An expulsion from college isn’t as serious as a prison sentence in terms of deprivation of liberty, but there’s no question that it can have a profound impact on the rest of a student’s life.

College disciplinary hearings implicate a student’s “property interests” as well. The progress that a student has made toward a degree constitutes property — a thing of value that belongs to a person — because of all the time and money that he or she has invested in progressing towards that degree. Once the state has chosen to grant students a property right by admitting them to a public institution of higher education, it cannot revoke this right arbitrarily or unfairly.

�鶹��ýIOS facing disciplinary hearings at public colleges and universities, thus, have both liberty and property interests at stake.

The more serious the possible deprivations of liberty and property — generally, the more serious the accusation — the greater the due process protections required. Most of our discussion focuses on the protections due to students facing possible suspension or expulsion, but liberty and property are also at stake in cases involving more minor potential punishments. �鶹��ýIOS are entitled to a different kind of due process, with fewer procedural protections, in cases involving only minor sanctions. There are some cases where the potential deprivations of liberty and property are so minor that very little or no process is due. The courts have not laid out precisely where this threshold lies in the university context, and the law continues to evolve on this question.

Substantive due process rights

In addition to procedural due process rights, you also possess a separate class of rights known as substantive due process rights. Substantive due process rights protect you from vague, overbroad, and unfair rules. In the American understanding of justice, no person may have any of his or her fundamental rights or personal freedoms taken away without both procedural and substantive due process. Public colleges and universities may not improperly restrict these substantive due process rights by establishing vague or unfair rules that can be sprung upon you unfairly or that can be interpreted, unfairly and surprisingly, to cover seemingly ordinary conduct.

Disciplinary cases involving suspension or expulsion

�鶹��ýIOS facing possible suspension or expulsion from public colleges and universities are entitled to due process protections because their liberty and property are at stake. But exactly what process is due?

At the absolute minimum, students in campus disciplinary cases are entitled to have (1) notice of the charges against them, (2) an explanation of the evidence against them, and (3) an opportunity to tell their side of the story.

The Supreme Court established these minimal requirements in  in which nine suspended Ohio high school students sued their school, claiming that they had been denied due process. The Court, weighing the costs and benefits to the school and to the students, held that although the most severe suspensions were only ten days long, the students had constitutional rights protected by the due process clause of the Fourteenth Amendment.

The Goss Court ruled that in student disciplinary cases involving short suspensions, an accused student must “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” The Court held that, at the very least, administrators must engage in an “informal give-and-take” with a student before imposing a penalty. To the Court, requiring this bare minimum of due process — notice and an “informal hearing” that permits a student to “give his version of the events” — is necessary because it “will provide a meaningful hedge against erroneous action.”

Importantly, the Court specifically stated that in more difficult cases, administrators may permit the participation or advice of counsel, hold hearings, or allow cross-examination. To a certain extent, Goss left the decision of whether to offer these greater protections to the “discretion” of administrators. But the Court also stated that due process “may require more formal procedures” in more serious cases.

For decades, judges have recognized the importance of “academic freedom” — which can be loosely defined as the right of colleges to make academic decisions for themselves, free from government interference. No interpretation of academic freedom, however, gives higher education the right to break the law or violate students’ constitutional rights.

Goss remains the Supreme Court’s clearest statement on student due process rights. So in the four decades following Goss, the lower federal courts and various state courts have worked on a case-by-case basis to determine how much process is due in various situations. While results have varied, federal and state courts have agreed that the amount of due process required in campus disciplinary cases must be based on the nature and gravity of the charges, and on the range and severity of the potential punishments.

Exactly what protections are required in particular cases, however, remains unsettled. Courts have required protections such as cross-examination and the right to an attorney in some campus cases where they have judged these safeguards to be necessary for basic fairness. But courts have also denied them in other cases where they believed that students could get a fundamentally fair hearing without these protections.

Generally speaking, judges must weigh the costs and benefits, for the institution and for the parties involved, in each particular case. The cost of adding procedural safeguards — in terms of time, effort, money, and interference with the smooth operation of the university — must be balanced against the likelihood of grave error or injustice if the procedural safeguards were not offered.

Under this analysis, you should insist on stricter procedural protections in cases involving or even touching upon freedom of speech. Constitutionally protected vital rights are the foundation of our liberty, and when they are at stake, the need for fair procedure is at its most critical.

Several factors have kept the courts from establishing more specific rules. First, due process by its very nature is supposed to be flexible. The establishment of one-size-fits-all rules would be contrary to the constitutional premise that one has a right only to the process that is “due.” (It’s worth pointing out that the classic legal treatise on due process by Judge Henry Friendly is titled .)

Second, only a relatively small number of campus due process cases have reached the courts. It will take more cases to smooth out the differences in how various jurisdictions treat the same situation. The law is likely to remain in flux with regard to exactly what protections public college students may expect in their disciplinary hearings. This is particularly true because of the increased regulatory and legislative activity related to campus discipline in recent years. As federal agencies and federal and state lawmakers pass new rules and regulations governing how colleges must respond to certain misconduct — particularly sexual assault — courts will continue to clarify what the Fifth and Fourteenth Amendments mean for students in campus disciplinary hearings at public institutions.

Third, courts are generally very reluctant to interfere with the internal affairs of a college. For decades, judges have recognized the importance of “academic freedom” — which can be loosely defined as the right of colleges to make academic decisions for themselves, free from government interference. No interpretation of academic freedom, however, gives higher education the right to break the law or violate students’ constitutional rights.

The law is unsettled, and even a bit conflicted. But it’s still possible to get a general sense of how courts approach campus due process. 

Those interested in due process and procedural fairness on campus should check out �鶹��ýIOS’s Model Code of Student Conduct — a comprehensive collection of disciplinary policies and procedures designed to protect civil liberties. Its provisions set the gold standard for due process and students’ rights, which we encourage educational institutions to adopt.

To learn more about your rights, explore �鶹��ýIOS’s Guide to Due Process and Campus Justice.