• Public Institutions Should Be Wary of Following This Process When Disciplining Its Students
  • February 22, 2006 | Author: Harold W. Potter
  • Law Firm: Holland & Knight LLP - Boston Office
  • Sean Michael Flaim, a third-year medical student at the Medical College of Ohio, was arrested and convicted of a felony drug crime. Flaim requested a hearing from the College shortly after he plead guilty. In response, Flaim received written notification to appear before the College's Student Conduct and Ethics committee to answer questions regarding his arrest and conviction. He was informed that he was not entitled to counsel because the criminal case had been resolved but that, in these circumstances, the College would allow counsel to be present although counsel would not be entitled to ask questions or confer with Flaim during the hearing. Flaim contacted a dean for further details about the hearing and was told that the College had obtained portions of his criminal record and that the arresting officer would testify.

    A hearing was held. The arresting officer testified; committee members asked the officer questions; Flaim's attorney, who was present, was not allowed to ask questions or speak with Flaim; Flaim was not permitted to cross-examine the officer; no recording of the proceedings was made; but committee members extensively questioned Flaim about the events. At the conclusion of the hearing, Flaim was told that the committee would prepare a written recommendation for the Dean's consideration, but this was never done. Flaim later received a onepage letter from the Dean expelling him from the College for violation of institutional standards of conduct. Upon further inquiry, Flaim was told that the College had a zerotolerance policy regarding drugs, that a more specific reason for the decision would not be provided and that an appeal was not available.

    Flaim responded to his expulsion with a 16-count complaint in federal district court against the College and multiple College administrators styled Flaim vs. Medical College of Ohio, 418 F. 3d 629, 631 (U.S.C.A., Sixth Circuit, 2005). In his lawsuit, Flaim claimed: (a) the notice was inadequate; (b) he was denied the right to counsel; (c) he was denied the right to cross-examine adverse witnesses; (d) he was denied the right to receive written findings of facts and recommendations; and (e) he was denied the right to appeal. After the Court granted a motion to dismiss, Flaim appealed on procedural and substantive due process grounds. The Court of Appeals, although critical of the lack of process provided to Flaim by the College, affirmed because the process followed by the College was consistent with the bare minimum requirements of due process.

    The bare minimum for a public institution, subject to the standards set by the Due Process clause of the Fourteenth Amendment to the United States Constitution is (1) notice, and (2) an opportunity to be heard. The type of notice and hearing will vary and are judged for sufficiency based on the context in which the dispute arose. In this case, the bare minimum sufficed because Flaim had plead guilty to a drugrelated felony.

    In analyzing the minimum requirements, courts look at (1) the nature of the private interest affected, (2) the danger of error and the benefit of additional or alternate procedures, and (3) the public or governmental burden if additional procedures were mandated. The Court recognized that Flaim's private interest was significant. But in balancing the next two factors, the Court found that notice was sufficient and that additional procedures would be burdensome to the college without benefit to Flaim. Flaim was clearly on notice as to the reasons for the hearing and he had already been convicted of a drug felony, a fact not likely to have escaped his grasp. The Court noted Flaim's desire to have a comprehensive listing of evidence but saw no benefit to Flaim or any risk of error by not requiring such detail. Moreover, the Court noted that there is no general requirement for counsel, cross-examination, written findings or a right of appeal. The level of process depends upon the facts and circumstances of the case and the facts and circumstances of this case permitted the bare minimum. Allowing Flaim another hearing in this case would be nothing more than an additional and unnecessary expense and administrative burden for the College without any corresponding benefit for Flaim.

    The fact that permitted the bare minimum clearly was the guilty plea. Because the College based its decision on the certified record of a felony conviction, the Court concluded Flaim's case was quite different from ordinary discipline cases, and rendered many of the ordinarily required procedures constitutionally unnecessary. The Court noted that the procedures used here were not ideal and could have been better, but were fundamentally fair.

    This decision is a victory for common sense. As the Court made clear, however, it was not a model for process. Public institutions should be wary of following this process in the ordinary discipline case.