What process is Due?

What process is Due?


One of my client’s asked recently, “does the Constitution apply to college students?” The U.S. Constitution protects college students in the same way it protects anyone else in relation to government and police actions. On campus, however, the level of protection depends on whether we are talking about the right to assemble and speak, freedom from unreasonable searches or seizures, or due process in university disciplinary procedures. I am unaware of cases that limit or minimize a student’s rights during police investigations on campus, such as freedom from unreasonable searches and seizures, the right against self-incrimination, or the right to counsel following an arrest. That may not be the case when it comes to other rights.

Students at public universities are entitled to certain due process rights in their relationship with the university, but disciplinary actions may provide fewer constitutional protections than some expect. A simple explanation is that the university must create a process and provide a hearing. The university will survive a due process challenge if it establishes a procedure, the procedure complies with state and federal law, and it followed the procedure.

Of course, the university must incorporate procedures or standards established by state and federal statutes. Sometimes these statutes afford greater process; other times, the procedures impose lower standards, or less process.

Title IX provides examples of ways state and federal intervention changed policies for disciplinary procedures at UNC-Chapel Hill. Federal law requires universities to establish special procedures to deal with harassment and sexual assault. Upholding Title IX requires university investigators and hearing panels to determine allegations by a preponderance or, greater weight, of the evidence, which is lower than the proof beyond a reasonable doubt standard applied to allegations of academic dishonesty or violations of the alcohol policy in the student honor court.

On the other hand, a state statute passed in response to changes anticipated by Title IX allows students to hire licensed attorneys to represent them during Title IX proceedings, while the UNC Honor Court prohibits licensed attorneys from representing students during honor court proceedings. Students often consult with lawyers about honor court proceedings, especially where criminal charges are pending or may arise from the university investigation, but the lawyer cannot represent them during the proceedings.

Student disciplinary proceedings have become common, complex, and punitive over the years. We represent and advise students facing all types of disciplinary proceedings on a regular basis. Because a court’s ability to review a university’s decision is limited, our chances of success are much greater when we get involved early in the disciplinary process. We will be happy to answer your questions or review allegations related to these proceedings. Don’t hesitate to call.

Amos Tyndall is a criminal trial lawyer who represents people accused of serious criminal offenses in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white collar offenses, and first-degree murder. Amos has been included in ©The Best Lawyers in America from 2013-17. (t) (919) 967-0504; atyndall@ptwfirm.com.

Amos G. Tyndall
Parry & Tyndall. PLLC
Attorneys at Law