By Stephen Henrick

“It is shocking,” wrote Professor Warren Seavy, “that the officials of a state educational institution, which can function properly only if our freedoms are preserved, should not understand the elementary principles of fair play. It is equally shocking to find that a court supports them in denying to a student the protection given to a pickpocket.”  That was in 1956, in Dismissal of Students: “Due Process.” Five years later, in Dixon v. Alabama, the Fifth Circuit cited Seavy’s article in holding that students who were summarily dismissed from a state college for participating in a lunch counter sit-in were denied due process of law.

In the 55 years since Seavy wrote those words, has much actually changed?  Now, state schools at least have to give the accused the formalities of notice and a hearing before imposing discipline.  But are there meaningful safeguards in place to ensure fairness?  Do students actually get due process, or just mistreatment by another name?

Furthermore, what of private schools, where the Due Process Clause does not usually apply?  Do the anemic standards of breach of contract theory or “fundamental fairness” actually constrain a university’s arbitrariness or caprice?

Quite simply, no.  See generally Schaer v. Brandeis Univ., 735 N.E.2d 373 (Mass. 2000).

Regrettably, students challenging their institutions in court for unfair discipline do not usually find success.  Due process for students accused of misconduct is rare in today’s world of higher education, largely because of a lack of court oversight.  Courts need to start taking a harder look at what goes on behind the closed doors of the ivory tower.  As the New York Court of Appeals once said, ” ‘The history of liberty has largely been the history of observance of procedural safeguards.’ If that be true in the dealings of the State with citizens enmeshed with its criminal justice system it is no less true in the dealings of a college with the members of its student body.”