A Two-Tier Approach to College Disciplinary Proceedings

©2015 Kenneth N. Margolin

A two-tier approach to college disciplinary proceedings is necessary to protect the massive investment made by students and families in order to pay for a college education. For students facing charges that may result in penalties less than suspension, expulsion, or a permanent negative mark on the student's transcripts, colleges should be able to employ a relatively informal disciplinary procedure. When suspension or expulsion may result, basic fairness and a recognition of the high stakes involved, as well as colleges' debt to the students who fund them, requires major procedural protections for the accused.

When college officials defend loose procedural protections even for a student facing possible suspension or expulsion for alleged disciplinary infractions, they often claim that the disciplinary process serves an "educational" purpose. That rationale is a holdover from a long-bygone era when most colleges were affordable and college officials exercised an informal "in loco parentis," protective relationship with their students. In 2015, however, most American colleges are major business enterprises, relying on ever-increasing tuitions from student and their families to operate, while paying top officials enviable salaries and benefits.

To anyone who may not have kept up with the financial picture of higher education in the United States, some of the numbers are shocking. The Wall Street Journal reported that the class of 2015 carries an average per student debt of $35,000. The total student debt has risen to $68 billion. At the same time, according to the U.S. News and World Report, the average annual compensation – salary plus bonuses and benefits – for an American college president, was $475,403. In 2014, according to the Chronicle of Higher Education, public university presidents averaged $428,000 per year in compensation. Nine presidents of public universities were paid in excess of $1 million dollars annually. In 2012, the last year for which the Chronicle of Higher Education had data, 36 private university presidents were paid more than $1 million per year.

The CEO-worthy salaries of college presidents tells only part of the story of the big business aspect of institutions of higher learning. As reported in Newsday, in 2014, the average annual compensation for the 25 highest paid football coaches in public universities, was an incredible $3.85 million. One public university football coach, Nick Sabin of the University of Alabama (the "Crimson Tide), will be paid $7,08,481 (reported by USA Today).

The exorbitant salaries paid to many college and university presidents, and the startling compensation paid to football coaches of NCAA college teams, are financed in large part by the tuitions paid to the schools by students and their families who have taken on more and more debt as tuitions rise faster than the rate of inflation. The implication for college disciplinary proceedings is straightforward: it is immoral, and it should be illegal, to deprive a student of his or her college education for alleged rules violations, without formal, legalistic procedural protections. Lesser alleged infractions carrying less severe penalties, such as warning letters, fines, or other non-college career threatening sanctions, can be treated as an opportunity to "educate" the student on integrity, responsibility, and good academic citizenship. When the student's college education is at risk, however, procedural protections should recognize the reality that the college is a business enterprise that is threatening to deprive the student of something for which they have paid – perhaps dearly – and that has significant economic value.

The requirements of the Due Process clause of the United States Constitution when a government agency seeks to strip someone of a property interest – for example, a licensing board attempting to provoke a professional's license to conduct his profession, is well-traveled territory in the courts. Typically, when much is at stake, the individual who must appear before the governmental agency or other entity, is entitled to: specific notice of their alleged infractions of law, and the bases for the allegations; the right to a hearing, with reasonable opportunity to prepare; at the hearing, the right to (self-paid) counsel, who may present witnesses and other relevant evidence, and cross-examine adverse witnesses; the right to a written decision with reasons for the decision.

No court has gone so far as to impose the full range of "due process protections" even on public universities in their conduct of student disciplinary hearings. Even the right to counsel has not been held to be constitutionally required unless a criminal complaint has been made based on the same set of facts as the college disciplinary charge. The courts have required only the most basic procedural fairness – adequate notice and some sort of hearing at which the student can present his or her case. The situation at private universities can be even less fair to accused students. The constitution applies only to public universities, and the courts require private universities to provide only what procedures are granted in the Student Handbook, which the courts view as a loose contract between the student and college.

What the law currently requires, however, is not what fairness mandates. When suspension or expulsion is the potential consequence of an alleged rules infraction, a student, whether at a public or private college, should have in addition to adequate notice, the right to a hearing at which they can be represented by counsel, at which counsel can present the case, including cross-examination of witnesses, a recording of the proceedings, and a written decisions with reasons specified for the findings and penalty, if any. Anything less fails to recognize that colleges have become big business, supported by their students, who ought not to be deprived of their major investment without serious procedural protections. The complaint of college officials that such formal hearings will be too burdensome, does not survive scrutiny. Even at large schools, disciplinary charges which may result in suspension or expulsion, are the exception, not the rule, and the stakes for the accused student outweigh the universities' claims of inconvenience.

Given the case law regarding the procedures owed by colleges and universities to their students, only legislation will result in adequate procedural safeguards in the most serious cases. Legislators are unlikely to act with sufficient urgency unless they hear from their constituents – students and their families - who demand not to be deprived of one of the most expensive and valuable investments they may ever make, without significant procedural protections, to guard against erroneous decisions or plain old bureaucratic arbitrariness.