PROCEDURAL RIGHTS

The first line of procedural protection that students have is the school's published student disciplinary procedures, which are generally considered to have the force of contract because they are agreed to as one of the terms of tuition.

In addition, California courts recognize a common-law right to fair procedure in private organizations that control a person's “important economic interests” [1]. Fair procedure is essentially equivalent to due process, with the only difference being that no government action is involved [2]. The right to fair procedure is an independent layer of protection separate from the school's own published procedure, but failure to follow the school's own published procedure is in itself considered a violation of fair procedure rights [3].

When does the right to fair procedure apply?

The right to fair procedure applies in organizations that have substantial control over a person's ability to obtain future employment [4]. The fair procedure doctrine originated in cases involving labor unions and professional associations [5]. It appears generally accepted that degree-granting institutions are subject to fair procedure requirements, though no court has issued any definitive ruling on the matter [6].

Employers are generally not subject to the fair procedure requirement because, in the vast majority of cases, they do not have the power to prevent an employee from working in a particular field [7]. For student-employees, the common law right to fair procedure applies if the disciplinary action affects the person's status as a student, but not if it only affects the person's employment. Employees may have some procedural rights granted by the employment contract and any written personnel policies the employer may have.

Any disciplinary action is subject to the right to fair procedure, regardless of whether the decision actually affects the student's economic interests [8]. Control of the student's ability to earn a degree, rather than the specific action being taken, is what creates the right to fair procedure.

What does fair procedure mean?

Fair procedure is considered equivalent to due process, with the only difference being that fair procedure applies to private organizations while due process applies to government action.

In the student discipline context, due process and fair procedure do not require all the formalities of a court proceeding, but the two key principles of due process are applicable: adequate notice of charges and a meaningful right to contest the charges [9]. The level of formal procedural protection required may vary depending on the severity of the potential penalty and the likelihood of error [10].

What kind of notice is required?

The accused must be provided enough notice to enable him or her to present a defense against the charges. A list of rules violated, or a charge that simply restates or paraphrases the rules, is not adequate notice. The minimum requirement is a description of the alleged offense, in enough detail for the accused to determine what acts are alleged [11]. An accused student who chooses to contest the charges must be provided with a summary or description of the evidence against him or her [12].

In addition, the accused is entitled to notice of all opportunities to present a defense, such as hearings and meetings, opportunities to submit a written statement, and procedures for appealing.

The type of notice required may vary with the potential penalty and the risk of erroneous punishment. For cases where the penalty is minimal and the facts are obvious, oral notice of charges before an immediate, informal ruling may be sufficient [13]. If expulsion or suspension is possible, or if much of the evidence is circumstantial, courts are likely to require written notice sufficiently far in advance to allow the accused enough time to prepare a defense [14].

What does the right to be heard mean?

The right to be heard has two major components: the accused must have a meaningful opportunity to contest the charges, and the adjudicator or adjudicatory panel must be impartial.

The right to contest the charges includes the opportunity to present a defense directly to those making the final decisions on both the facts of the case and the action to be taken [15]. A formal hearing is not always required.

As with notice, the degree of formal protection needed depends on the severity of the potential penalty and the likelihood of error. Where a minimal penalty is at issue, the case may be handled informally [16]. But if there is a possibility of severe penalties such as suspension or expulsion, or if there are any questions about the facts, a formal hearing with the opportunity to question and cross-examine witnesses may be necessary [17].

Actual bias for or against individuals involved in the case is not the only thing that violates the right to impartial adjudication. A procedure that creates a “practical probability of unfairness” through confirmation bias is also impermissible [18]. For example, in Applebaum v. Board of Directors, a California appellate court rejected a disciplinary procedure in which the person who instigated the charges then led the panel that investigated the charges and recommended a decision, and several members of the investigatory panel in turn sat on the committee that approved the final decision. The court, pointing out that people would naturally be reluctant to vote against their own prior opinions, ruled that the high risk of confirmation bias violated the accused person's right to fair procedure [19].

Overlapping roles are not, however, strictly prohibited. The key question is whether people who instigate or prosecute the charges have the ability to effectively control the decision. For example, if such people have significant voting power in the final decision, or control what evidence is seen by adjudicators, the likelihood of bias is high enough to violate the right to an impartial adjudication.

What kind of evidence can be used?

The rules of evidence used in the courts only apply to the court system. There are no legal limits on the evidence that may be used in college and university disciplinary proceedings.

Nonetheless, you can consider the practical reasons for excluding certain types of evidence from the courts (e.g. that secondhand information is less reliable) and use those reasons as arguments to contest the credibility of evidence.

Are ambiguous rules enforceable?

Overly ambiguous rules may violate the fair procedure requirement. The right to notice includes not only notice of charges against an individual but also fair notice of what forms of behavior are prohibited. As stated by the Supreme Court, “the terms of a penal statute . . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law” [20]. While absolute precision is not required, rules in the context of higher education must be “reasonably calculated to give adequate notice of the scholastic attainments and behavior expected of the student” [21].

Do I have the right to record interviews or hearings?

There is no guaranteed right to make video or audio recordings of interviews or hearings. California has a “two-party consent” law on recordings, which means a conversation cannot be recorded without the consent of all parties [22].

Courts have held that accused students are entitled to some kind of record of disciplinary proceedings as part of due process or fair procedure; colleges and universities must either provide a record or allow the accused student to take notes [23].

In addition, the Family Educational Rights and Privacy Act (FERPA) entitles you to inspect your educational records, including records of disciplinary proceedings [24].

Am I entitled to a lawyer?

Neither federal nor California law guarantees the right to a lawyer in most student disciplinary proceedings; generally colleges and universities may prohibit students from having a lawyer represent them in hearings and during questioning. However, they cannot prevent students from seeking and obtaining advice from a lawyer in preparing a defense or appealing the decision.

Can the legal system overturn a false finding of guilt based on purely factual error?

Only in rare cases. Although a decision may be overturned if “the findings are not supported by the evidence” [25], the court's ability to review the evidence is limited to determining whether there is substantial evidence that supports the administrative decision [26]. As long as there is some evidence in the record that is “reasonable, credible, and of solid value,” it is sufficient to support the decision [27]. Thus, under most circumstances, factual findings will only be overturned if they were the result of a flawed procedure. There are only two other circumstances under which a decision may be overturned on the basis of incorrect or incomplete facts. These circumstances are as follows [28]:

• If the decision on the student's guilt is inconsistent with the factual findings (i.e. the school's determination of what happened), or if no record of factual findings exists, then the decision is invalid as not being supported by the findings.

• If new evidence has come to light that could not have been discovered earlier, or if evidence was unfairly or arbitrarily excluded, a court may order a reconsideration of the case in light of that new evidence.

What should I do if my fair procedure rights are being violated?

Consult a lawyer to identify all your options for legal action. Be aware that the deadlines for certain options may be short and you may need to take certain steps to keep these options open.

One option that is often available is to file a petition for a writ of mandate, asking a judge to review and potentially invalidate an administrative decision [29]. The deadline for a writ of mandate is normally 60 days after the final administrative decision unless good cause is shown for a longer delay. This is the earliest potential deadline for legal action in most cases.

If you believe your fair procedure rights are being violated, you should raise your specific objections at some point in the internal process in order to avoid waiving any rights [30]. When reviewing a petition for a writ of mandate, a court generally will not examine a potential violation of fair procedure rights if the issue could have been raised earlier but was not.

Footnotes