How’s this for a nightmare? You’re getting a post-secondary education at a public college or grad school, doing well enough in your studies, in which you have invested years of your time and from which you have accumulated tens of thousands of dollars or more in student debt.
Then one day, out of the blue, you’re told your presence is urgently required in a university official’s office. There you’re informed you’ve been accused of a serious, but only vaguely described, offense against university rules, and will face a disciplinary hearing – and that could mean you’ll be suspended from school or even expelled.
This comes as a surprise and a shock to you; you’ve never been in any sort of trouble at school before. And, just as you have only a sketchy idea of the charges you may be facing, you have only the vaguest understanding of how the disciplinary hearing might work, or how to go about defending yourself, which of course you plan to do. After all, getting kicked out of school for misconduct could jeopardize not just your reputation, but also your ability to complete your education, pursue many professions or maybe even earn a living.
The bad news keeps coming: when you inquire about the disciplinary hearing, you may be told that you won’t be permitted to bring in an attorney to help you make your case and protect your rights. You may be told that an attorney may accompany you, but may only act as your advisor and can have no formal part in the hearing. And if you’re planning to confront your accusers, better think again: you may not be allowed to challenge their statements, or even question them.
You’re probably asking yourself: exactly who invented this fantasy, Orwell or Kafka? But how can this be, you ask; after all, if you had been arrested and faced a criminal charge, the 6th Amendment gives you the rights to have a lawyer defend you, to have the charges against you spelled out, and to face your accusers and cross-examine them.
But unless the school disciplinary hearing involves criminal charges, the school doesn’t have to give you the same rights there (even though what happens at the school hearing might be offered as evidence against you if you’re later charged with a crime, and a school hearing can have similarly drastic consequences for your reputation and career).
You only have limited Due Process rights in a higher education setting because courts have historically treated getting a college education as a privilege, not a right. They have been reluctant to interfere with college administrators’ supposed expertise in their realm, instead according them wide-ranging in loco parentis powers over their students.
In the landmark court decision Dixon v. Alabama State Board of Education, a federal appeals court in 1961 ruled constitutional due process prevented black students at a state college from being expelled without a stated reason (apparently they had taken part in an off-campus civil rights demonstration), and administrators could not impose arbitrary or unfair rules, like depriving them of the right to know the charges against them or to have a hearing.
Even so, that decision did not specify what type of hearing was required, saying that could vary with the case’s circumstances. It also was silent on whether a school could lawfully exclude lawyers, and added that it was not mandating “a full-dress judicial hearing, with the right to cross-examine witnesses.” The decision was also limited to colleges run by a government entity, providing no precedent for students in disciplinary hearings at private colleges and universities.
So that is where we are now. Public and private schools – some with the bare minimum, some with more protections – but even at schools with the greatest protections, the student will still not have rights close to those of a criminal defendant.
(The next article in this series will examine ways in which college disciplinary hearings can lack fairness and deprive students of basic rights).