With colleges punishing student protesters, campus due process is more important than ever

Universities across the country are experiencing levels of student protest not seen since the Vietnam anti-war and South African anti-apartheid eras. 

Against this backdrop, college administrators have struggled to balance their twin obligations to provide a campus free from disruption, violence, and discrimination while respecting their students’ right to free expression. Over these past few weeks, too many colleges and universities have failed to separate First Amendment-protected speech from illegal conduct, either ham-fistedly cracking down on both or failing to address either. 

Columbia University and other institutions recently announced that students taking part in occupying campus buildings and committing other violations of university policy may face suspension or expulsion. FIRE agrees that universities should uphold their own policies when student protests cross the line into unprotected speech and conduct, but it is equally important for students to receive their full due process rights before any punishment is imposed. 

Unfortunately, many universities have a spotty record of respecting the right to due process. 

What is due process and why does it matter?

Universities are within their rights to discipline students for legitimate violations of university policy or local, state, and federal law. However, they must still afford those students due process. 

The right to due process is, simply put, the right to a fair procedure. As a society, we have agreed that before we judge someone guilty and deprive them of their rights, freedom, or property, they must first go through a fundamentally fair process. On campus, students have a moral right — and often a legal right — to that same treatment. 

Only in a society that ensures a fair process can we safely exercise all of our rights.

Students invest years of their lives and a lot of money in their college education. When a university sanctions them for misconduct, that investment, along with the student’s reputation, is at stake. Courts have long held that in such cases, a student’s property and liberty interests prevent universities from disciplining them without at least some procedural safeguards to preserve the integrity of the process.

While due process is clearly important for the student facing punishment, it is also critical that others in the campus community are able to rely on these procedural safeguards. If the university were permitted to arbitrarily sanction students, its written procedures would be rendered meaningless and every student would be incentivized to self-censor, lest they become the next student punished. 

Only in a society that ensures a fair process can we safely exercise all of our rights.

What does a fair process look like?

The precise level of due process to which a student is entitled varies depending on whether the university is public or private, what sanctions the student is facing, and the procedural safeguards outlined in university policy. 

A public university is an arm of the state and cannot constitutionally deny a student their due process rights. Private universities, by contrast, are free to set their own rules and to formulate their own disciplinary procedures. However, once they publish disciplinary rules, they are obligated by the principles of contract law to follow them in good faith and cannot disregard them for the sake of convenience. 

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FIRE’s Model Code of Student Conduct identifies several due process protections we consider most essential, including: 

• A clearly stated presumption of innocence: The presumption of innocence — “innocent until proven guilty” — is a bedrock principle of any fair system of adjudication. It properly prevents universities from placing the burden of proof on the accused student. 
• Adequate time to prepare for a reasonably prompt disciplinary hearing, including the opportunity to review all relevant evidence possessed by the institution: If the focus of a disciplinary proceeding is finding the truth, parties must have the right to review all relevant evidence with sufficient time to prepare prior to a hearing. This allows the accused to present a reasoned and comprehensive case to the disciplinary body. 
• The right to a meaningful hearing process, adjudicated by unbiased fact-finders, including the opportunity to present all evidence directly to the fact-finders: A core component of due process is an impartial hearing body, prohibiting conflicts of interest that have the potential to undermine the integrity of the disciplinary body. Further, the university should not limit the scope of material evidence presented or deny the ability of the accused to be heard by the fact-finders. Particularly when suspension or expulsion may occur, findings of responsibility must be based on all available evidence.
• The right to be accompanied by an attorney who is permitted to actively participate during the investigation and at all proceedings: Students should not be left to navigate a complex and high-stakes disciplinary process without the opportunity to enlist the assistance of an attorney of their choice who is trained and more familiar with the process. 
• The right of the accused to appeal a finding of responsibility: When there has been a clear flaw in the initial disciplinary proceeding, students should be able to make that case. 

University disciplinary proceedings too often lack these safeguards. 

In FIRE’s most recent Spotlight on Due Process report, nearly two-thirds of America’s top 53 universities maintained disciplinary policies that failed to explicitly guarantee that students will be presumed innocent until proven guilty. Over the years, FIRE’s analyses of university disciplinary procedures have revealed that institutions, both public and private, too often go out of their way to avoid respecting their students’ due process rights.

What does this mean for student protesters?

Amid federal investigations, congressional scrutiny, international media coverage, and pressure from donors, college administrators are feeling the heat to punish student protesters. In the middle of a crisis, it is all too easy for college administrators to throw due process out the window and punish students accused of misconduct — whether that misconduct is forming encampments, occupying buildings, or committing other violations of law and university policy. 

Yet these are the times when due process is most important. 

On college campuses, there is no greater punishment than expulsion. And that’s exactly what powerful voices are calling on universities to do immediately. While there may well be legitimate reasons to expel student protesters, rushing to do so because of student viewpoints rather than policy violations would be a mistake. Due process exists to strip away the emotions and focus only on the truth so justice can be done. 

Universities seeking to discipline their students must live up to their promises and obligations to provide fair proceedings. If they don’t, they can expect to hear from FIRE. 

FIRE stands ready to assist any student or administrator interested in bolstering the due process protections on their campuses. You can reach us directly at dueprocess@thefire.org.