Without a doubt, American colleges and universities have become more vigilant about identifying mentally ill students in the wake of the Virginia Tech massacre and the shooting spree in Tucson by alleged shooter Jared Loughner, a former community college student. Across the country, colleges are creating behavioral intervention teams made up of faculty and staff to identify and evaluate students who appear to be mentally unstable. The primary goal of this heightened vigilance is to protect campus communities from mentally unstable students who might be dangerous to themselves or others.
Nevertheless, a college student at a public institution has a constitutional right to a due process hearing before being suspended or expelled, and a student does not lose that right simply because a college official suspects that the student is mentally ill. This was the ruling in Barnes v. Zaccari (2012), a clear and reasonable decision by the Eleventh Circuit Court of Appeals.
THE FACTS OF BARNES V. ZACCARI
Thomas Barnes was a student at Valdosta State University who was in counseling for anxiety and agoraphobia at the VSU counseling center (Barnes v. Zaccari, 2012, p. 1298). Barnes was an environmentalist of sorts, and he deeply opposed a VSU master plan calling for construction of a parking deck on the VSU campus. Barnes expressed his opposition to the parking deck in e-mail messages to VSU officials, on his Facebook webpage, and in a series of flyers that he posted around the campus. Barnes also wrote a letter to the VSU student newspaper expressing his view that construction of the parking deck was shortsighted and a waste of university money.
Ronald Zaccari, VSU president, became concerned about Barnes’s activities, particularly after he learned that Barnes had directly contacted members of the Board of Regents about the parking deck. President Zaccari summoned Barnes to his office on April 16, 2007, where he explained VSU’s reasons for building the parking deck and expressed his frustration with Barnes’s opposition.
Barnes continued to oppose the parking deck even after meeting with Zaccari, and he sent Zaccari three e-mails about the topic after the meeting. As the Eleventh Circuit observed, “These emails show Barnes was passionate about environment issues,” but the e-mails “contain[ed] no overt threats and [did] not suggest that Barnes wanted to harm anyone” (p. 1299).
As it happened, Barnes and Zaccari met on the very day of the Virginia Tech tragedy.
Immediately after that meeting, “Zaccari began looking for a way to remove Barnes from campus” (p. 1301). Zaccari examined Barnes’s academic record to see whether Barnes’s scholarly performance would provide a basis for removing him, and he held five meetings with campus administrators about Barnes. According to the Eleventh Circuit, two VSU mental health professionals “repeatedly told Zaccari that Barnes was not a threat to himself or others” (p. 1300). Other VSU officials concluded that Zaccari was overreacting.
Not long after Zaccari’s meeting with Barnes, someone tripped the alarm system at Zaccari’s home, and he received a prank phone call. Zaccari reported these incidents to a VSU police officer, who investigated Barnes and concluded that Barnes was not a threat.
Zaccari explored several avenues for kicking Barnes off campus, but all procedures required VSU to afford Barnes a hearing. “Zaccari ultimately rejected these options as too ‘cumbersome’” (p. 1301).
Instead, Zaccari decided he could “administratively withdraw” Barnes from VSU on the grounds that Barnes presented “a clear and present danger to the campus” (p. 1301). On May 7, VSU police slipped a letter under Barnes’s dorm room door, notifying Barnes that he was being administratively withdrawn.
The letter also informed Barnes that he could not return to campus until he had two letters from mental health professionals certifying that he was not a danger to himself or others and that he would receive therapy while enrolled at VSU. Barnes obtained the letters, but he was not reinstated. He asked for a hearing, but more than six months after making this request, he still had not been given a hearing.
In early 2008, Barnes sued Zaccari and the Board of Regents of the University System of Georgia, alleging a violation of his right to due process. Zaccari moved for summary judgment, arguing that Barnes’s right to a hearing was not clearly established. A federal trial judge denied Zaccari’s motion, and he appealed to the Eleventh Circuit.
On appeal, the Eleventh Circuit upheld the trial court and stated plainly that Barnes had a right to a due process hearing before being expelled from VSU. “Indeed,” the Eleventh Circuit said, “no tenet of constitutional law is more clearly established than the rule that a property interest in a state school is an important entitlement protected by the Due Process Clause of the Fourteenth Amendment” (p. 1305). The court pointed out that the Fifth Circuit Court of Appeals had made this point clear more than 50 years ago in the famous case of Dixon v. Alabama State Board of Education (1961). In that case, an Alabama college had expelled several African American students without explanation or a hearing after the students participated in a civil rights demonstration. The Fifth Circuit ruled that the students were entitled to notice of the charges against them and a hearing to defend themselves.
Zaccari argued unsuccessfully that he faced an emergency that required him to remove Barnes without giving him a hearing. The Eleventh Circuit acknowledged that the Supreme Court had said that an actual or reasonably perceived emergency might justify removing a student from school without a predeprivation hearing (Goss v. Lopez, 1975). However, in the case before it, no emergency existed. In fact, the court said, the evidence suggested that any fear Zaccari might have had about Barnes was unreasonable.
Barnes v. Zaccari is a clear, well-reasoned case—as important as the Dixon case on which the Eleventh Circuit relied in reaching its decision. Public universities cannot expel students without giving them an opportunity to defend themselves against charges in a hearing—even if a university’s president perceives the student to be “a clear and present danger” to the campus community. Of course, there will be instances in which university officials reasonably perceive a student to be so violent or potentially violent that they can act unilaterally without giving the student a preexpulsion hearing. In those cases, the hearing should take place as quickly as possible after the expulsion in an environment that will protect everyone’s safety (Goss v. Lopez, 1975). But an expelled student’s constitutional right to a hearing cannot be dispensed with altogether, even if the student is disruptive or dangerous.
In Barnes v. Zaccari, the Eleventh Circuit was not persuaded that Thomas Barnes presented a threat to campus safety. The court said that President Zaccari could present more evidence at trial to justify his expulsion decision, but he was not entitled to have Barnes’s due process claim dismissed prior to trial.
Barnes v. Zaccari is a good decision and useful to university administrators who perceive that a student is mentally ill and potentially dangerous. Every student is entitled to a due process hearing at some point in an expulsion procedure. Slipping a note under the student’s dorm room door does not constitute due process.
Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012).
Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961).
Goss v. Lopez, 419 U.S. 565 (1975).
Valdosta State University