Due Process, Fundamental Fairness, and Judicial Deference: The Illusory Difference Between State and Private Educational Institution Disciplinary Legal Requirements

Authors

Paul Smith, Intellectual Property Group, Downs Rachlin Martin PLLC (DRM), Burlington, Vermont Office

Abstract

[Excerpt] “The educational process at a college or university, where students often experience new-found freedom, includes adherence to academic and behavioral standards. The institution may impose sanctions on students for breaching these standards. Prior to imposing a sanction, however, an institution must provide the student with a sufficient level of process or risk judicial invalidation of the sanction.

Courts distinguish the process due a student attending a state institution from the process due a student attending a private institution. Related to this distinction is the judicial claim that courts grant discretion to a private institution’s judgment regarding discipline for academic, as opposed to behavioral, matters. However, as actually applied, the difference between the process due students at state institutions and those at private institutions is questionable. Furthermore, the actual discretion afforded to private institutions for their academic-violation processes is similarly questionable.

This article will analyze five issues related to the distinction between state and private institution disciplinary proceedings. First, this article will analyze the process due a sanctioned student at a private institution. Second, it will compare the process due a sanctioned student at a private institution with the process due a student at a state institution and assert that the practical differences are small. Third, it will analyze the judicial claim that more discretion is afforded private institutions in academic disciplinary matters and assert that this discretion is applied inconsistently between courts. Fourth, this article will present the judicial doctrines regarding review of a private institution’s behavioral disciplinary proceedings. Finally, this article will provide recommendations to private institutions regarding disciplinary policy creation and implementation.”

Repository Citation

Paul Smith, Due Process, Fundamental Fairness, and Judicial Deference: The Illusory Difference Between State and Private Educational Institution Disciplinary Legal Requirements, 9 U.N.H. L. REV. 443 (2011), available at http://scholars.unh.edu/unh_lr/vol9/iss3/6