Due Process, Substantive and Procedural

Affording persons or organizations “due process” basically means to conduct legal proceedings with fairness in both content and procedure. In private colleges and universities, the principles of due process are usually governed by standards of good faith in adherence to provisions of contracts and handbooks. In contrast, as arms of state governments, public institutions of higher education are subject to the constraints of the U.S. Constitution. The Fifth Amendment to the Constitution states, as a command to the federal government, that no person shall be “deprived of life, liberty, or property, without due process of law.” This phrase is, essentially, the only command that appears twice in the Constitution. Section 1 of the Fourteenth Amendment extends the same principles of due process to state governments in its stipulation that “. . . nor shall any state deprive any person of life, liberty, or property, without due process of law; . . .” The Fourteenth Amendment’s relationship to state governments connects the due process clause to the work of public colleges and universities. Over the years, courts have defined what is meant by life, liberty, and property and have interpreted the due process clauses of both the Fifth and Fourteenth Amendments to contain two kinds of due process rights: substantive and procedural. In light of the great significance of substantive and procedural due process in the day-to-day activities on college and university campuses, this entry examines key issues on this topic. 

Due Process Rights

In order to present viable claims for violations of due process, plaintiffs, whether they are faculty members, staff workers, administrators, or students, must allege that they were deprived of life, liberty, or property interests in connection with their activities. Due process claims alleging deprivations of life in higher education settings are very rare, because life interests under the due process clause are just what they sound like. Although there are some examples involving life interests, such as deaths of students as a result of accidents on campuses stemming from hazing, binge drinking, or athletics, these are beyond the scope of this entry.

Claims involving liberty and property interests are much more common. In higher education, liberty interests are implicated in a wide variety of cases involving student admissions, discipline, academics, degree revocation, and employment. As to faculty members, staff, and administrators, litigation typically involves hiring, dismissals, and promotion and tenure decisions. Traditional liberty interests include rights to speech, religion, assembly, and privacy. Yet much of the discussion of liberty interests in due process analysis involves the interest in persons’ good names, reputations, honor, and integrity. For example, stigmatizing statements made by college or university officials about faculty members or students may damage their reputations enough to implicate liberty interests. If the damages were to harm the faculty members’ or students’ ability to obtain employment or other lucrative opportunities, then the injured parties may have successful due process claims. Property interests for faculty and staff are found in employment contracts. For students, property interests include the right to an earned benefit such as a course grade or degree or the right to stay in school. 

Substantive Due Process

The words due process probably most often convey thought related to what might be described as procedural due process. The rights protected by the due process clauses—life, liberty, and property— also serve as proxies for substantive rights not explicitly named in the Constitution but nonetheless protected by its provisions. Examples here include the right to bodily integrity such as freedom from abuse and harassment at the hands of government, parents’ rights to raise their families and to direct the education of their children, and the right to enter into contracts and to work. As a result, actions by governmental decision makers that deprive persons of one or more of these unnamed rights may be subject to substantive due process claims. 

Substantive due process also prevents governments and governmental actors, meaning public officials with the actual or apparent ability to act in their official capacities, from acting arbitrarily, capriciously, and outside the scope of their authority. Substantive due process asks whether the government’s exercise of authority “is a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual in his personal liberty . . . ?” (Lochner v. New York, 1905, p. 56). In effect, due process puts substantive limits on what lawmakers, judges, and government executives may do. In higher education, substantive due process regulates the activities of boards of trustees, presidents, and other administrators who make decisions in enacting policies that affect students, faculty, and staff. 

State actors, including those in public higher education, are afforded a great deal of leeway in their work. In other words, courts ordinarily do not reverse the decisions made by university faculty, staff, and administrators without clear reasons for doing so. In Regents of the University of Michigan v. Ewing (1985), for instance, the Supreme Court upheld the decision of university officials to dismiss a medical student for poor academic performance and for failing the National Board of Medical Examiners’ examination. In an important statement favoring judicial deference to the decisions of academic leaders, the Court explained that when judges are asked to review the substance of academic decisions, they ought to demonstrate great respect for the professional judgment of faculty members; this deference is rooted in the concept of academic abstention. The Court added that the judiciary may not override the judgment of academicians unless the academicians’ actions are such substantial departures from accepted norms as to show that they failed to exercise appropriate professional judgment. 

At the same time, substantive due process places limits on this discretion, for both individuals and institutions as a whole, particularly when the conduct of college and university officials is so arbitrary and capricious as to “shock the conscience.” The limits on discretion are particularly noteworthy for college and university officials, who, as individual state actors, may be personally liable for actions they undertake while performing their official duties. The Supreme Court addressed this point in Wood v. Strickland (1975), a K–12 case, wherein it ruled that school board members were not immune from liability under Section 1983 of the Civil Rights Act of 1871 when they disciplined students. The Court noted that such public officials could face personal liability if they knew or reasonably should have known that the actions they took within the sphere of their official duties would violate the constitutional rights of the people affected or if they acted with malicious intent to cause a deprivation of constitutional rights or other injuries. 

Procedural Due Process

Procedural due process requires officials to employ fair and appropriate procedures when restricting persons’ life, liberty, or property interests. Most often, when people think of procedural due process, regardless of whether they are in higher education, they probably focus on the procedures required in cases of student discipline or faculty and staff dismissal. These procedures usually include notice of the charges against the persons or of the judgments to be made along with opportunities for the persons to be heard or appeal adverse decisions, either informally or formally. 

In procedural due process analyses involving public institutions of higher education, there are two important questions to ask. The first examines whether the Fourteenth Amendment’s Due Process Clause applies. Put another way, this inquiry addresses whether life, liberty, or property interests are implicated by institutional decision making, such as decisions made to discipline students or faculty members. As indicated earlier, life interests are rarely implicated in the actions of college and university officials. However, liberty and property interests are commonly present, such as the liberty interests in reputation and the opportunity to graduate or obtain employment in addition to the property interests associated with faculty and staff contracts.

The Supreme Court’s opinion in Board of Regents v. Roth (1972) offers a fine illustration of liberty and property interests related to procedural due process. In Roth, the Court decided that university officials did not violate the due process rights of a nontenured faculty member when they chose not to renew his contract after it expired. As to the liberty interests at stake in Roth, the Court reasoned that because officials did not make any charges against Roth that might have seriously damaged his standing and associations in his community when they chose not to renew his contract, his good name, reputation, honor, and integrity were not at stake. Further, the Court thought that the dismissal did not impose a stigma on the faculty member that foreclosed his freedom to take advantage of other employment opportunities. Turning to the faculty member’s property interest, the Court was of the opinion that because the property interest had expired, leaving Roth no legitimate entitlement to property, the actions of university officials did not impair his reputation or his ability to obtain employment elsewhere. 

The second question to be asked in procedural due process analyses concerns the amount of process that individuals are due if the actions of university officials implicate due process rights. The level or amount of procedural due process afforded depends directly on the severity of the deprivations or losses. For example, student suspensions or losses of privileges such as participating in extracurricular activities would require less formal processes than expulsions or revocations of degrees. In like fashion, the nonrenewal of the contracts of faculty members, as in Roth, even when implicating due process rights, requires less process than the termination of contracts or denials of tenure. 

Courts usually make distinctions between due process for discipline, which is formal, and due process for academic decisions, which is most often less formal. In Board of Curators of the University of Missouri v. Horowitz (1978), for example, the Supreme Court found that, in academic disputes, the degree of due process afforded students is less rigorous than that afforded them in disciplinary disputes. In academic contexts, the Constitution mandates only informal notice and reviews. In disciplinary contexts, particularly those involving suspensions or expulsions, procedural due process is ordinarily more formal, likely including provisions requiring such elements as fact-finding committees, appeals panels, recorded transcripts, and opportunities to present witnesses’ testimony and written evidence. 

In order to answer the question of how much process is due, courts generally engage in a balancing of rights. On one hand, courts review the interests of the students or faculty members or other staff who are being impacted by the allegedly adverse decision. For instance, students who are subject to a degree revocation would almost certainly have liberty and property interests implicated. On the other hand, courts also look at the interests of the colleges or universities. In the same example of a degree revocation, institutional interests may include academic integrity, academic standards, consistency of policy, safety of students and staff, and so on. In this balance, it is important to consider the risk of wrongful deprivation of due process rights. If college or university officials were to fail to afford procedural due process and erroneously revoke the degrees of graduates, the graduates’ due process rights would certainly have been violated. The provision of procedural due process, which ensures that all sides of a story are heard, is designed to minimize this risk. 

In sum, it is important to keep in mind that procedural due process, as outlined by cases such as Roth, highlights individuals’ rights as interpreted generally by the courts. Moreover, interested readers should consult local laws and, especially, their institutional policies for the required due process procedures for academic and disciplinary decisions taken against students, staff, and faculty members.

Patrick D. Pauken

See also Board of Regents of State Colleges v. Roth; Due Process Rights in Faculty and Staff Dismissal

Further Readings

  • Beckham, J. (2005). Faculty. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 89–130). Dayton, OH: Education Law Association. 
  • Legal Information Institute. (n.d.). Due process. Retrieved June 26, 2009, from http://topics.law.cornell.edu/wex/due_process 
  • Russo, C. J., & Thro, W. (2005). Student equal protection and due process. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 257–275). Dayton, OH: Education Law Association.

Legal Citations

  • Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978). 
  • Board of Regents v. Roth, 408 U.S. 564 (1972). 
  • Civil Rights Act of 1871, Section 1983, 42 U.S.C. § 1983. 
  • Lochner v. New York, 198 U.S. 45 (1905). 
  • Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985).
  • Wood v. Strickland, 420 U.S. 308 (1975).