SUSPENSION
OF
STUDENT
PENDING
DISCIPLINARY HEARING
Due process under the fourteenth amendment requires the minimum
of notice and some opportunity for a hearing before a student at a tax
supported university can be suspended or expelled for misconduct. I This
article will investigate the status of the student at various stages of the
administrative action against him: (I) suspension pending hearing; (2)
suspension without a hearing which becomes final if no hearing is
requested; and (3) suspension after hearing and pending appeal.
SUSPENSION PENDING HEARING
Whether due process of the fourteenth amendment requires that a
student not be suspended prior to a disciplinary hearing necessarily
involves the question of whether the student will suffer irreparable injury
as the result of the suspension. 2 Irreparable injury depends o'n such
I. Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.), em. denied. 368 U.S. 930
(1961).
Administrative action in a public institution constitutes state action, bringing the fourteenth
amendment into play. Esteban v. Central Mo. State College, 290 F. Supp. 622, 628 (W.O. Mo.
1968).
In determining whether a disciplinary sanction will be included within the due process clause in
some manner, it is neoessary to determine the nature of the governmental interest or function
involved as well as the private interest affected. Where the governmental power is almost absolute
and the private interest is slight, no hearing is required. Cafeteria'" Restaurant Workers v.
McElroy, 367 U.S. 886, 895 (1961). The governmental power of a university to discipline students is
not absolute and cannot be arbitrarily exercised, at least in the absence of chaotic conditions which
threaten the peace and security or perhaps the very existence of the university itself, since the power
arises out of the university's interest in maintaining an academic environment, which is not an
interest analogous to national security. Compare Cafeteria'" Restaurant Workers v. McElroy, 367
U.S. 886 (1961), and Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 157 (5th Cir. 1961).
The student's interest, whether described as a right or a privilege, is to be evaluated in terms of
its true significance, and an education is now considered vital if not basic to civilized society. Dixon
v. Alabama State Bd. of Educ., 294 F.2d 150, 157 (5th Cir. 1961); Knight v. State Bd. of Educ., 200
F. Supp. 174, 178 (M.D. Tenn. 1961).
The "right" of a student to remain in school is a protected interest under the fourteenth
amendment. Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961) (expulsion); SogJin
v. Kauffman, 295 F. Supp. 978, 988 (W.O. Wis. 1968) (suspension for a period of time substantial
enough to prevent one from obtaining credit for the term); Schiff v. Hannah, 282 F. Supp. 381
(W.O. Mich. 1966) (refusal to readmit at beginning of new semester); Knight v. State Bd. of Educ.,
200 F. Supp. 174, 178 (M.D. Tenn. 1961) (indefinite suspension). But see Esteban v. Central Mo.
State College, 290 F. Supp. 622, 629 (W.O. Mo. 1968) (limited to irrevocable expulsion) (dictum).
The basis of the protection is irreparable injury to the student. Woods v. Wright, 334 F.2d 369, 375
(5th Cir. 1964). It does not, however, extend to discipline related to academic performance. Wright
v. Texas S. Univ., 277 F. Supp. 110, III (S.D. Tex. 1967), affd. 392 F.2d 728 (5th Cir. 1968).
2. Woods v. Wright, 334 F.2d 369, 375 (5th Cir. 1964).
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factors as the timing of the suspension in relation to the semester, the
length of the suspension period, and the collateral effect of the record of
the suspension in other settings.
Assuming irreparable injury to the student from the suspension, the
question then becomes the extent to which strict procedural due process
of a judicial proceeding will be applied to university disciplinary
proceedings. While the fourteenth amendment does not appear to be
limited to any particular type of proceeding, 3 the courts have refused to
extend the strictness required in judicial proceedings to university
disciplinary matters, by the use of such language as "rudiments of an
adversary proceeding,"4 or "well recognized principles of fair play."5 To
fit a suspension pending hearing into such language, some analogy,
therefore, must be drawn to the judicial process. The status of a student
pending a hearing can be analogized to the concept of bail in a criminal
action. Arrest and detention of a suspect pending trial is a change of
status involving personal liberty; bail is a restoration of the status of the
accused. The rationale underlying the right to bail is the presumption of
innocence of the accused'-regardless of the character of the crime,
whatever the facts may be, or the opinion of the magistrate as to the
unfitness of the accused to mingle in society.7 The same presumption of
innocence should apply to a student pending a hearing on a charge of
misconduct. Further, the administration's opinion as to the student's
fitness or unfitness to remain in school should not be determinative in the
absence of some immediate danger.
University regulations commonly contain a provision that a
student's status shall not change pending a hearing "except for reasons
relating to his physical or emotional safety and well-being, or for reasons
relating to the safety of students, faculty, or university property,"8 or
other similar provision based on "danger.'" However, whether a
university has such a provision and violates it, or does not have one and
changes the student's status without regard to "danger," the
"rudiments of an adversary proceeding," or "well recognized principles
3. "[NJor shall any State deprive any person of life, liberty, or property, without due process
of law . . . . n
4. Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5th CiL), cerl. denied. 368 U.S.
950 (1961).
5. Wright v. Texas S. Univ., 392 F.2d 728, 729 (5th Cir. 1%8).
6. Dudley v. United States, 242 F.2d 656 (5th Cir. 1957).
7. Gusick v. Boies, 72 Ariz. 309,234 P.2d 430 (1951).
8. L. JOUGHIN, AAUP ACADEMIC FREEDOM AND TENURE 71 (1967).
9. Stricklin v. Regents of tbe Univ. of Wis., 297 F. Supp. 416 (W.D. Wis. 1969) (term
employed by court to refer to factors involved in physical or emotional safety and well-being of
student, otber students, faculty, or university property).
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of fair play" are not observed. Although an "interim" suspension
pending a full hearing may be justified on the basis of "danger" by
analogizing to the imprisonment of an accused pending trial, a mere
declaration by an administrative official or body that such a "danger"
exits, should not be allowed as a subterfuge to take drastic action, any
more than the character of a crime should be used to deny bail to an
accused.
In Marzette v. McPhee,lo the university opposed reinstatement of
the students pending a hearing in that it would "endanger both the
suspended students and other students at the university." The
suspensions followed disturbances by a group of students which included
the takeover of the president's office, restraining him, and destroying
university property. Judge Doyle found irreparable harm to the
suspended students and that the suspension was continued without due
process, and ordered reinstatement within 3 days unless a hearing was
scheduled within 7 days. The court further provided, however, that the
reinstatements need not be made if the administration filed a motion, to
be heard in 4 days, to the effect that "reinstatement be deferred for
reasons relating to the safety of students, faculty, or administrators of
the university, or university property."
Three months after his decision in Marzette, Judge Doyle was
presented with a similar situation in Stricklin v. Regents of the
University of Wisconsin. II Following campus disorders or "riots," the
board of regents, after hearing an oral report by the chief of security of
the university in regard to the disorders and the alleged participation by
the plaintiff-students, suspended the students immediately, pending a
hearing. The students were given no notice of the regents' meeting, nor
were they given subsequent opportunity to be heard by the regents in
regard to the suspensions. The students asked the court for a temporary
restraining order providing that they be reinstated. The regents
contended the students' continued presence would endanger persons and
property on campus. The court referred to its interim opinion in the
same case, in which it had concluded that the students had discharged
their burden of showing suspension for a substantial period (8 days)
without notice or a hearing, and that the regents had the burden to show
the suspension without a hearing was in fact required by reasons of
physical or emotional safety and well-being of the plaintiffs, other
students, faculty, administrators, and university property. The court
reasoned that even an interim suspension pending a hearing on the
10.
II.
294 F. Supp. 562 (w.O. Wis. 1968).
297 F. Supp. 416 (w.O. Wis. 1969).
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charge, based on "danger," must be preceded by a "preliminary
hearing" on that issue unless such was impossible or unreasonably
difficult, and even then it must be held at the earliest practical time.
Since the regents had failed to show such impossibility or unreasonable
difficulty, it ordered the students reinstated pending the full hearing on
the condition that the university could still suspend the students prior to
the full hearing on the merits if a preliminary hearing were provided. The
judge added that his holding in Marzette did not vindicate the guarantees
of procedural due process and was ill-advised.
What constitutes a "preliminary hearing" to determine suspension
pending a hearing on the merits? Stricklin does not set out the
requirements of a "preliminary hearing," but indicates that the
procedural requirement is "less rigorous than those which must precede
the ultimate imposition of serious disciplinary sanction." Considering
the Dixon language that "the nature of the hearing should vary
depending upon the circumstances of the particular case," it is obvious
that the "danger" in connection with a given student would depend upon
a collection of facts concerning that "danger" and it would appear that
the student should be entitled at least to some form of notice and an
opportunity to present his side to the appropriate body or administrative
official. Certainly, under Stricklin, an ex parte hearing will not suffice
even though the chief of security testifies as to "danger."
In circumstances involving "danger," the governmental interest is
more absolute when weighed against the student's interest. But the
necessity of a showing by the university of impossibility or unreasonable
difficulty in providing a "preliminiary hearing" before suspending a
student does not leave the university without reasonable recourse, and
the student's interest is protected against arbitrary action. A "danger"
of sufficient intensity to create an immediate hazard would, in all
probability, justify arrest of the student, which would relieve the
university of the need for immediate action. If the student, after release
on bail, continued to harass the university and frustrate its efforts to
make a determination of "danger" by means of a preliminary hearing, it
would not be too difficult for the university to show impossibility or
unreasonable difficulty after suspending the student.
There are, of course, situations where the university is not
physically able to provide procedural due process before some action,
such as suspension, is taken. Although notice is required, where a
diligent attempt to give notice to a student is unavailing, disciplinary
action may be taken.
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In Wright v. Texas Southern University,12 the dean in charge of
student discipline sufficiently justified his failure to give actual, formal
notice to a pair of students who were suspended. The dean was unable to
contact the students because they had failed to register new mailing
addresses with the university as required by school regulations. Also, the
requirement of a prompt hearing may not be present in circumstances
where chaotic conditions on the campus exist, and those persisting in
their efforts to maintain the state of chaos may be temporarily
removed. 13 "Drastic administrative action is sometimes essential to take
care of problems that cannot be allowed to wait for the completion of
for mal proceeding." 14
Where a student is suspended as the result of a hearing which did
not meet the minimum requisites of due process, as for example where he
was not given adequate notice of the charge against him, he should be
reinstated pending adequate notice and a hearing de novo on the merits.
Reinstatement was denied in a situation such as this, however, in
Esteban v. Central Missouri State College, IS where the students, who had
allegedly participated in campus disturbances, were orally advised that
disciplinary action was being considered against them and were given an
opportunity to discuss charges against them with the dean of men, who
was one of the members of the hearing board which made
recommendations in regard to discipline to the president of the
university. The court hearing was on September 6, 1967, and the decision
on October 3, 1967, in which written notice and a hearing, among other
safeguards, were ordered, since the court found that there were
uncertainties as to the grounds of the violations and that the students
were not given an opportunity to be heard before the hearing board.
However, the students were not reinstated pending the outcome of the
hearing because "Under the circumstances of this case, and in view of
the fact that the present school term has been in progress for some
weeks, it would be inequitable . . . . "18 It would appear that the choice
of reinstatement "in view of the fact that the present school term [had]
been in progress for some weeks," should have been left to the students.
In fact, the 34-day interim between court hearing and decision effectively
deprived the students of the semester without an administrative hearing
12. 277 F. Supp. 110 (S.D. Tex. 1967), affd. 392 F.2d 728 (5th Cir. 1968).
13. Scoggin v. Lincoln Univ., 291 F. Supp. 161 (W.O. Mo. 1968) (dictum); K. DAVIS,
ADMINISTRATIVE LAW TEXT § 7.08 (1959).
14. K. DAVIS, supra note 13.
15. 277 F. Supp. 649 (W.O. Mo. 1967). See also French v. Bashful, 303 F. Supp. 1333 (E.D.
La. 1969).
16. 277 F. Supp. at 652.
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on the merits. However, apparently, the "circumstances" considered by
the court were the voluntary statements made to the dean of men at the
time of the incidents in question, and to this court in the present action,
which left little in dispute as to the facts of the students' misconduct. The
students had a "hearing" of a sort, and perhaps the court felt
reinstatement would have been an idle gesture and an inconvenience to
the university.
SUSPENSION WITHOUT
A HEARING WHICH BECOMES FINAL IF STUDENT
A HEARING
DOES NOT REQUEST
A suspension without a hearing, to become final if the student does
not request a "hearing," would, on its face, appear to be nothing more
than an ex parte expulsion based on the merits of a charge, with an
appeal being the only administrative procedure available in which the
student may have an opportunity to be heard. Add the element of
"danger" and the procedure becomes difficult to test. The suspensions
in Marzette were by written notice from the president of the university in
which the students were informed that they could appeal the order by
requesting a hearing within 10 days; otherwise, the students would be
expelled. The court, in commenting on this device, described it as
unusual but considered the central issue to be status pending final action
in the hearings which were ordered by the court. By ordering
reinstatement of the students pending the outcome of the ordered
hearings, subject to a showing of "danger," the court treats the situation
the same as one involving temporary suspension based on "danger"
pending a hearing provided by the university as a matter of course.
The procedure was involved in two other cases, but other factors
obscured a direct test. In Barker v. Hardway,17 the students had
requested a hearing but refused to participate in it when denied right to
counsel. In a de novo court hearing, the district court found this denial
by the school president to be within his authority and found no abuse of
discretion under the facts of the case which showed that the students had
participated in actions exceeding the bounds of a peaceful demonstration
and that they had refused to come to the president's office, as requested,
to discuss the actions. Here, the hearing, which could be requested, was
termed an "appeal hearing" from the president's order, which was
considered justified and within his authority, and was held to be
adequate by the court.
17. 283 F. Supp. 228 (S.D.W. Va.), affd, 399 F.2d 638 (4th CiT. 1968), cert. denied. 394 U.S.
905 (1969).
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The issues of expulsion without a hearing and the shifting of the
burden of proof to the student were raised in Jones v. State Board of
Education, 18 after a hearing had been requested following notice that the
student would not be readmitted the following semester. The faculty
advisory committee, which was the disciplinary body, had made an ex
parte determination not to readmit the student due to his misconduct.
This action was to become final if no request for a hearing was made, in
which the student could show cause why the action should not become
final. The court declined to apply the "technicalities governing burden of
proof' in a court of law to university proceedings, since the student had
his opportunity to be heard on the charges, and that the word "readmit"
in the suspension order did not lend substance to the "unfounded
argument of semantics" by the student since the purpose of the hearing
was to determine whether the charges were true. Further, the court
concluded that the requisite hearing was held before final decision was
made.
In Barker and Jones, the attacks on the procedure came after
hearings were requested and afforded the students. Whether the outcome
would have been different had the students attacked the suspensions
without requesting a hearing is speculative. Since Jones was not enrolled
at the time of suspension, showing irreparable injury could have proved
difficult. Also, whether the court would have considered the order
"final" until he requested a hearing could have created the problem of
whether he had exhausted his administrative remedies. In Barker,
although irreparable injury could have been shown prior to the hearing
since the students were enrolled at the time, classifying the hearing as an
"appeal" could have created an exhaustion problem.
It would appear that a suspension without a hearing, to become
final if the student did not request one, would be a denial of due process
under Dixon, which requires notice and a hearing prior to expulsion,
since the action by the university actually amounts to expulsion without
a hearing by an ex parte adjudication on the merits. Further, since the
order becomes final in the absence of affirmative action by the student, a
requested hearing would actually be an appeal from a "void" order.
Viewed as a "void" final order, there should be no necessity in
exhausting administrative remedies before resort to the courts. If this
type of "appeal hearing" procedure is allowed, the student is saddled
with the burden of seeking readmission, rather than defending himself on
the charges. In spite of the court's rejection of the burden of proof
18.
279 F. Supp. 190 (M.D. Tenn. 1968), afjd. 407 F.2d 834 (6th Cir. 1969).
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argument in Barker. it would seem to be contrary to fundamental
fairness to reverse the presumption of innocence and force the student to
prove his right to be readmitted.
SUSPENSION AFTER A HEARING AND PENDING ApPEAL
Where administrative appeal is provided, the analogy to bail would
not necessarily yield the same result for a student's status after a hearing
and pending appeal as it would in his status pending a hearing, since bail
after conviction is generally discretionary, rather than a matter of right,
pending appeal. 19 Some university regulations preserve the status of the
student pending appeal, 20 and it can be argued that even in the absence of
such provision the exhaustion of administrative remedies should not
alter student status, since the student can as easily suffer irreparable
injury at this stage as in the pre-hearing stage. Further, where
administrative appeal is provided, the student, as a general rule, cannot
attack the administrative action in court until he had exhausted his
administrative remedies,21 since there has been no final decision up to
that point. 22
CONCLUSION
In the long rugged road from the concept of in loco parentis (in the
place of a parent) to the Dixon recognition of a student's
constitutionally-protected "interest" in acquiring an education, much
stress has been placed on the procedural aspects of university
disciplinary proceedings. In balancing the respective, and, at times
competing interests of the university and the student, not only legal but
sociological factors begin to emerge to cloud the traditional
relationships involved.
In its simplest terms, a university cannot function without authority
or survive amidst chaos. To fulfill its role as an educational institution,
discipline is a necessity. On the other hand, a student cannot be relegated
to the status of a mere number or be subjected to the whims of an
administrative official. Dixon has set forth a basic accommodation of
these interests in the disciplinary area by extending procedural due
process, in a watered-down form, to university disciplinary proceeding.
The boundaries of that extension are ill-defined. Beyond the requirement
19.
20.
21.
22.
State v. Bradsher, 189 N.C. 401, 127 S.E. 349 (1925).
Texas Tech University. Code ofStudent Affairs and Rules and Regulations 9 (1970-71).
Esteban v. Central Mo. State College, 290 F. Supp. 622, 628 (W.D. Mo. 1968).
See Opp Cotton Mills v. Administrator, 312 U.S. 126 (1941).
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of notice and some opportunity for a hearing, uncertainty abounds.
Mere technical adherence to these two requirements will not fully protect
a student's interest in situations where he may be suspended before being
heard on a charge of misconduct. In the absence of extreme
circumstances, a student should be entitled to the status quo until his side
has been effectively presented and fairly heard.
Marwin B. Brakebi//*
•
Graduating class of 1970 and member of the staff of the Texas Tech Law Review.
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