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

�鶹��ýIOS who face suspension or expulsion because of poor academic performance are also entitled to due process, but only minimal protections are required. Universities must make academic decisions in a manner that is careful and not arbitrary, but they do not have to grant students the same procedural safeguards required in disciplinary matters.

Academic cases require fewer procedural protections because professors, almost by definition, are better equipped than judges to make academic evaluations. The procedural protections of the criminal law are useful for fact-finding, but are not required in cases involving subjective judgments of academic performance. A professor’s grading of a student’s academic performance is protected from court interference by the principle of academic freedom. Unless the professor’s assessment can be shown to have been influenced by improper factors, such as the student’s race or political viewpoint, the professor’s decision is final.

The Supreme Court considered the balance between academic freedom and due process in two major cases of the late 1970s and early 1980s. In  (1978), the Court reviewed a due process claim brought by a student who was dismissed from a public medical school because of poor academic performance. The student was never given an opportunity to be heard by any of the university committees that took up her case. However, the Court held that hearings and associated procedural protections are not required in academic dismissal cases, because they do not involve the kind of factual determinations in which heightened protections would be useful. The Court ruled that Horowitz’s treatment was consistent with due process because of a few basic conditions: her work had been thoroughly reviewed by both faculty members and school committees, and the decision to dismiss her was “careful and deliberate”; she had been given ample notice that her work was judged to be unsatisfactory; and she had been granted a number of chances to exhibit improvement.

If your college or university — public or private — fails to follow its own rules, you may have a claim under several other legal doctrines, including state precedent about contracts that oblige organizations to honor their own promises.

The Supreme Court expanded on this in  (1985), in which a student claimed that he was denied due process when he was dismissed from a medical program after receiving the lowest score ever recorded on a standardized test in the history of that program. He complained that many other students with even poorer overall academic records had been allowed to retake the standardized test. In refusing to interfere with the expulsion, the Court invoked the principle of academic freedom. It ruled that courts should defer to universities’ judgments on academic matters unless there is “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” Because the student’s overall record was exceptionally poor, the university’s decision to dismiss him was well within its discretion.

Lower courts have interpreted these decisions to require that public colleges and universities make academic decisions in a manner that is “careful and deliberate,” or at least not “arbitrary and capricious.” In other words, if a public college can show that it is expelling you because of your academic performance, and not some other reason, chances are that a judge will side with the college.

�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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Courts will intervene in academic decisions only if you were treated with blatant unfairness or were punished on the basis of prohibited factors and criteria. If you made a clear case that the academic sanctions against you had no basis in reason or fact — or arose from other grudges held against you — you then might convince a court to set aside its presumption in favor of the university. For example, in  (1994), the Court of Appeals of Texas ordered a public university to readmit an expelled graduate student. The court ruled that the dismissal was made on the basis of personal hostility arising from the student’s intellectual disagreements with the faculty and his outspoken criticism of university policies — not on the basis of the student’s erratic (but occasionally distinguished) academic record.

Additionally, courts have sometimes required that students be given advance notice that their poor performance has placed their status in jeopardy, or, failing that, be given notice of the general standard of performance expected of students.

Sometimes, for due process purposes, cases of cheating are best considered as disciplinary cases. For instance, when a student is accused of copying from another student’s paper by looking over his shoulder during an exam, determining guilt or innocence is a matter of fact-finding: Did the student actually copy? If the facts indicate that a rule was broken, the student is guilty; if they do not, the student is innocent. The procedural protections of due process are designed to assist with precisely these sorts of factual determinations and to help the university find out what happened as fairly as possible.

In contrast, charges of plagiarism — a form of cheating — include both academic and disciplinary elements. On the one hand, the real question in a plagiarism case is whether a student committed the particular act of using someone else’s work without attribution. That is a factual question. On the other hand, the question of whether a student’s words were so close to those of another, uncited source that his or her work constitutes plagiarism also requires skilled academic judgment. The issue to be resolved in a campus plagiarism case is thus both factual and judgmental.

When you seek a court’s intervention, it is in your interest to define the charge as “disciplinary,” offering you more safeguards. It is in the interest of the school’s administrators and lawyers to define the charge as “academic,” offering them greater discretionary power. Sometimes that line is quite vague, as in the case of plagiarism. Having your case treated as disciplinary in the campus proceedings themselves would create a record that strengthens your argument in court that the case is indeed a disciplinary rather than an academic matter.

The university must deliver what it promises

A public college or university cannot decide on its own not to grant the due process rights that the Constitution requires. The Constitution mandates these rights. If your college or university denies you any of the required due process protections, you can file a due process claim in federal or state court.

Many public colleges and universities, however, promise students considerably more than due process requires. The law does not oblige campuses to offer a full and formal judicial hearing, for example, but some universities provide something fairly close to one. Courts do not typically require campus tribunals to permit cross-examination of witnesses, with some exceptions based on the type of case at issue, but some universities have chosen to allow it in certain circumstances.

Courts will generally compel both public and private universities to give you all of the procedural protections that they have promised you. The courts enforce these obligations, however, not as a matter of your rights to due process, but as a right you have under state contract law. Some states also have rules that require administrative agencies to follow their own regulations. If you live in such a state, these administrative rules may provide an additional legal theory useful to force a public university to obey its own rules.

If your public college or university denies you basic procedural protections guaranteed by the Constitution, you may have a due process claim.

The case of  (1984), decided by the Court of Appeals of Oregon, illustrates the potential advantages of making a contract or state administrative procedure claim, rather than a due process claim, if your university deviates from the rules it established for itself. The issue in Morrison was whether a university had followed its own procedures when it dismissed a dental student for academic reasons. The university’s policy stated that only evidence raised at a student’s actual hearing could be considered in reaching such a decision, but the record showed that the university had considered evidence never raised at this hearing. The court ordered the university to reverse a dismissal that had been reached by a violation of its own promised procedures. This victory could not have been gained on due process grounds, because due process does not require universities to grant students a hearing in academic cases.

If your public college or university denies you basic procedural protections guaranteed by the Constitution, you may have a due process claim. If your college or university — public or private — fails to follow its own rules, you may have a claim under several other legal doctrines, including state precedent about contracts that oblige organizations to honor their own promises.

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.