• There are ‘Hearings’ and then there are ‘Hearings.’ But What Kind of ‘Hearing’ Does Due Process Require?
  • December 8, 2014 | Author: Derek Todd Teeter
  • Law Firm: Husch Blackwell LLP - Kansas City Office
  • Students at public colleges and universities have a right to procedural due process before being deprived of a constitutionally protected interest in continued education; private colleges and universities may grant students similar rights through contract. Where students have the right to procedural due process, before an institution of higher education can dismiss a student, it must give the student notice of the reasons for dismissal and an opportunity to be heard. How much of an opportunity does a school need to provide?

    Students often think an “opportunity to be heard” means a trial-like hearing with witnesses, cross examination, and an impartial fact finder. This isn’t so, as the recent case Perez v. Texas A&M University at Corpus Christi et al., F. App’x-2014 WL 5510955 (5th Cir. Nov. 3, 20140), reminds us.

    The University dismissed Perez from its nursing program after she received her second failing grade in a required course. Prior to failing the class the second time, Perez received three warnings about her class performance. Perez sued, claiming she received inadequate due process before her dismissal.

    The 5th Circuit Court of Appeals found Perez received sufficient process. The court held that when a student is dismissed for academic reasons, constitutional due process requires only that the student be “informed” of the institution’s dissatisfaction with her academic progress and that the decision to dismiss her be “careful and deliberate.” The court noted that a student dismissal for academic reasons “certainly does not require a formal hearing.”

    The court explained further that, even when an institution dismisses a student for disciplinary (as opposed to academic reasons), due process does not entitle the student to a “formal hearing” but instead an “informal give-and-take between the student and the administrative body dismissing him that would, at least, give the student the opportunity to characterize his conduct and put it in what he deems the proper context.”

    What this means to you

    Perez illustrates that public colleges and universities are not constitutionally required to provide students with elaborate, trial-like procedures prior to academic or disciplinary dismissals. Although institutions certainly can choose to adopt trial-like procedures through language in their student handbooks or course catalogs (which, of course, they must follow once adopted), they can also choose to adopt less onerous procedures, especially for academic dismissals. Examine your policies and procedures to determine if they provide more expansive procedural due process than necessary to meet your institutional priorities.