ERIC Identifier: ED435311
Publication Date: 1999-11-00
Author: Stevens, Ed
Source: ERIC Clearinghouse on Higher
Education Washington DC.| BBB32577 _ George Washington Univ. Washington DC.
Graduate School of Education and Human Development.
Due Process and Higher Education: A Systemic Approach to Fair
Decision Making. ERIC Digest.
Justice and due process are inseparable. When facts are in dispute, the ideal
of just decision making requires unbiased, principled deliberation.
Simultaneously, the constitutional concept of due process demands fundamental
fairness in the method by which discretionary power is exercised. In higher
education, a link between due process and discretionary justice is crucial.
University officials and faculty at all ranks are frequently required to make
discretionary decisions based on interpretations of disputed facts. By applying
the concept of due process in the context of higher education, they can meet the
legal challenges of contract and constitutional law and the pedagogical demand
To guide their efforts to comply with the requirements of due process,
decision makers in higher education can turn to a body of case law that has
evolved over the last half century. These cases, which address criminal
procedure, administrative law, and a range of constitutional issues, underlie an
approach to fair, or "systemic," decision making, which can be used as a guide
in the principled resolution of disputed facts in the academic setting.
Approaching disputes from the perspective of due process not only protects
educational professionals from legal liability, but also provides a method
whereby the resolution of disputes can serve pedagogical and therapeutic
The concept of due process has come to embody the essence of fair decision
making in criminal, civil, and administrative law. Due process generally
requires adequate notice and a meaningful opportunity to be heard, but these
requirements involve intertwined substantive and procedural considerations. A
systemic approach to the provision of due process in higher education ensures
fair decision making in higher education.
WHAT IS DUE PROCESS? WHEN ARE DUE PROCESS PROCEDURES REQUIRED?
The phrase "due process" is found in the Fifth and Fourteenth
Amendments to the U. S. Constitution, which require that the federal and state
governments (respectively) provide citizens with substantive fairness and
certain procedures or "process" before depriving them of life, liberty, or
property interests. In an extreme case, when a government prosecutor proposes to
take a citizen's life as punishment for a crime, that citizen is due, for
example, an attorney, a trial before an unbiased judge, and an automatic appeal
to the Supreme Court. Similarly, when a state government, acting through its
publicly funded university, proposes to punish a medical student for misconduct
by taking from her the opportunity to continue to study at the school, the
school must first notify the student of its intentions and provide a hearing in
accordance with procedures appropriate to the deprivation. The courts have
intentionally retained flexibility in the interpretation of the requirements of
due process in higher education, and no exact formula exists for the process due
in any individual situation.
WHAT ARE THE EXPECTATIONS OF THE COURTS WITH REGARD TO DUE PROCESS IN HIGHER EDUCATION?
The courts have granted tremendous
deference to the decisions of administrators and professors in higher education.
Before the 1960s, it was extremely rare for a court to even consider the
propriety or fairness of a college's academic evaluation or disciplinary action
(Wright, 1969). Schools were said to stand in loco parentis with respect to
their students and assumed to act in their best interests. That broad
discretionary authority has diminished considerably in recent decades. Modern
courts require that university policies and regulations not infringe upon the
established constitutional rights of professors or students. If a school decides
to deprive a student or employee of a constitutionally protected interest, it
must provide notice and a hearing commensurate with the interest at stake. The
courts continue to allow institutions of higher education considerable
discretion in deciding how due process protection shall be provided, and
interfere with academic and disciplinary decisions only when constitutional
standards are clearly violated.
HOW DO LEGAL REQUIREMENTS FOR FAIR DECISION MAKING DIFFER IN PUBLICLY SUPPORTED AND PRIVATE INSTITUTIONS?
Amendment requires a publicly funded university, as an arm of the state
government, to provide due process before depriving an individual of protected
liberty or property interests. Under contract law, a private college may be held
to this same standard if it promises in official literature to provide due
process in connection with disciplinary action against members of the
institutional community. Both public and private schools are legally obligated
to fairly and reasonably carry out the requirements of their written and implied
contracts with students and faculty. These contractual duties may parallel the
requirements of constitutional due process, depending on the legal
interpretation of the wording of the documents that create the contracts.
HOW DOES THE SYSTEMIC APPROACH TO DUE PROCESS DIFFER FROM OTHER METHODS OF PROVIDING DUE PROCESS IN HIGHER EDUCATION?
A number of
recent publications have promulgated model student codes (Pavela, 1990; Stoner & Cerminara, 1990), model hearing procedures (Bienstock, 1996), and other
systems for complying with the demands of administrative and constitutional law
in higher education. But no single code or procedural model can anticipate and
address the countless variations in circumstances likely to arise. The systemic
approach relies less on specificity in regulations and consistency in hearing
procedures and more on an understanding, throughout the institution, of the
principle of due process.
Those involved in official proceedings tend to evaluate procedural justice on
the basis of perceived neutrality; fairness appears to be defined in terms of
perceived bias, honesty, and fact-based decision making (Lind et al., 1990). But
participation, dignity, and trust could be more important determinants of
judgments about the fairness of judicial proceedings. Based on a growing body of
research in "therapeutic jurisprudence," it can be said that when people have
the opportunity to actively participate in hearings where they are treated with
dignity and respect, they tend to have greater trust in those who conduct the
hearings and are more receptive to the decisions rendered (Wexler & Winick,
1996). This principle has important implications for due process hearings in
Due process is not a single event that occurs in isolation. A university
should promote system-wide respect for the principles of due process by ensuring
that all official inquiries into disputed facts are conducted in a predictable
and dignified manner, that any members of the institutional community who face
official action adverse to their protected interests receive proper notice and a
meaningful opportunity to present and respond to evidence, and that academic and
disciplinary decisions are made by unbiased officials. Compliance with the
essential principles of due process in the context of higher education will
reduce institutional and personal liability, and will lead to fair and just
outcomes. Selected References
Bienstock, R. E. (1996). A guide to conducting a hearing in a higher
education setting. Asheville, NC: College Administration Publications.
Lind, E. A., Maccoun, R. J., Ebener, P. A., Felstiner, W., Hensler, D.,
Resnik, J., & Tyler, T. (1990). In the eye of the beholder: Tort litigants'
evaluations of their courtroom experiences in the civil justice system. Law and
Society Review, 24, 953-996.
Pavela, G. (1990). The dismissal of students with mental disorders.
Washington, DC: National Association of College and University Attorneys. ED 410
848. 31 pp. MF-01; PC not available EDRS.
Stoner, E. N., & Cerminara, K. L. (1990). Harnessing the "spirit of
insubordination": Model student disciplinary code. Journal of College and
University Law, 17, 89-121.
Wexler, D. B., & Winick, B. J. (Eds.). (1996). Law in a therapeutic key:
Developments in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.
Wright, C. A. (1969). The Constitution on the campus. Vanderbilt Law Review,
This ERIC digest is based on a full-length report in the ASHE-ERIC Higher
Education Report series, 27-2, Due Process and Higher Education: A Systemic
Approach to Fair Decision Making by Ed Stevens.