Due Process Roulette: Why Public University Students Are Not Guaranteed Procedural Due Process When Facing Suspension or Dismissal

• Publication year: 2022

52 Creighton L. Rev. 375. DUE PROCESS ROULETTE: WHY PUBLIC UNIVERSITY STUDENTS ARE NOT GUARANTEED PROCEDURAL DUE PROCESS WHEN FACING SUSPENSION OR DISMISSAL

DUE PROCESS ROULETTE: WHY PUBLIC UNIVERSITY STUDENTS ARE NOT GUARANTEED PROCEDURAL DUE PROCESS WHEN FACING SUSPENSION OR DISMISSAL

Ty C. Medd-'20

I. INTRODUCTION

Government has the duty to provide quality education for all schoolchildren. ^[1] The United States Supreme Court has defended a student's right to continued education, especially at the K-12 level. ^[2] However, the Court has remained mute on whether that same protection extends to publicly-funded university education. ^[3] This silence has resulted in a split among the United States courts of appeals. ^[4] Due to this split, students facing dismissal or suspension rely on the circuit their university sits in, rather than a uniform rule, to protect their rights under the Due Process Clause. ^[5]

In Goss v. Lopez, ^[6] the Supreme Court created a protected property interest in continued education and a protected liberty interest ina student's good name and reputation. ^[7] However, in Board of Curators of the University of Missouri v. Horowitz ^[8] and Regents of the University of Michigan v. Ewing ^[9] the Court declined to extend those same rights to public university students. ^[10] In absence of a clear standard, some circuit courts determined there was a protected interest in continued university education or in a student's reputation, while other circuit courts simply assumed that a protected interest existed. ^[11] However, the United States Court of Appeals for the Seventh Circuit required the plaintiff to show an entitlement to a protected interest in order to bring a valid claim under the Due Process Clause. ^[12]

This Note will discuss the importance of providing public university students facing expulsion or long-term suspension with proper due process protections. ^[13] First, this Note will present the origins of a constitutionally-protected liberty or property interest as derived from the Due Process Clause. ^[14] Next, this Note will examine Supreme Court precedent relating to a student's right to procedural due process. ^[15] Then, the split amongst the circuit courts of appeals, which resulted from a lack of guidance from the Supreme Court, will be re-viewed. ^[16] Finally, this Note will argue that both a protected property interest in continued education and a protected liberty interest in a student's reputation should be implicated when a public university student faces dismissal or long-term suspension for academic or disciplinary reasons. ^[17]

II. BACKGROUND

A. Origins of Procedural Due Process Protection

When the government deprives individuals of their constitutionally protected liberty or property interests, the United States Supreme Court reviews such deprivations to determine whether individuals were afforded procedural due process. ^[18] In Mathews v. Eldridge, ^[19] the plaintiff challenged the suspension of his Social Security benefits when the government determined he was no longer disabled. ^[20] The United States District Court for the Western District of Virginia and the United States Court of Appeals for the Fourth Circuit held that the plaintiff's due process rights were violated. ^[21] The Supreme Court reversed the Fourth Circuit's decision, reasoning that the plaintiff was not entitled to a formal hearing before the government suspended his Social Security benefits. ^[22]

The Court has acknowledged the controversies surrounding the interpretation of the Due Process Clause. ^[23] In recognizing these controversies, the Court has asserted that an individual's liberty interests and property interests cannot be arbitrarily deprived. ^[24] When due process analysis is triggered, the Court determined that, at a minimum, the plaintiff must be given the opportunity to be heard before he or she is deprived of property or liberty interests. ^[25] Constitutionally-protected property and liberty interests are not unlimited, and the first question a court must ask is whether the individual is actually being deprived of a liberty or property interest. ^[26]

B. What is Property?

In Board of Regents of State Colleges v. Roth, ^[27] the United States Supreme Court examined and defined attributes of a constitutionally- protected property interest. ^[28] David Roth, a university professor, claimed he was not given proper procedures when the university declined to rehire him after his one-year contract ended. ^[29] The United States District Court for the Western District of Wisconsin granted summary judgment to Roth, stating that the university should have disclosed the reasons Roth was not rehired and provided Roth a hear-ing. ^[30] The Supreme Court reversed the lower court's decision and articulated that when a plaintiff claims a violation of due process, the plaintiff must show that he or she is entitled to due process protec-tion. ^[31] The Court recognized that property interests are distinguished from liberty interests in that property interests must be derived from an independent source, outside of the United States Constitution. ^[32]

In Town of Castle Rock, Colorado v. Gonzales, ^[33] the Court clarified the origins of a protected property interest by determining that whether a property interest is protected by the Due Process Clause is a question of federal law. ^[34] In Gonzales, the plaintiff stated that her due process rights were violated when the town's police force failed to enforce her restraining order against her estranged husband. ^[35] While the United States District Court for the District of Colorado dismissed plaintiff's case on substantive due process ground, the United States Court of Appeals for the Tenth Circuit determined that the plaintiff had a procedural due process claim. ^[36] The Supreme Court disagreed, stating that the interest the plaintiff claimed in the enforcement of arestraining order was not a property interest. ^[37] The Court examined the statutory scheme that provided the plaintiff the restraining order and determined that the statute did not contain language entitling the plaintiff to mandate police action. ^[38] The plaintiff was not entitled to a protected property interest because the interest she claimed was an incidental, rather than direct, benefit of the state statutory scheme, and incidental benefits do not invoke due process. ^[39]

C. What is Liberty?

The Supreme Court broadly interprets the meaning of liberty in the Due Process Clause. ^[40] In Meyer v. Nebraska, ^[41] the Court stated that in balancing citizens' liberty interests with state interests, the Court must ensure that the arbitrary use of the state police power does not interfere with liberty interests. ^[42] The plaintiff in Meyer was convicted of impermissibly teaching German to a student who had not reached eighth grade in violation of a Nebraska statute. ^[43] The Court determined that the state statute arbitrarily interfered with a parent's ability to direct a child's education. ^[44] The Court noted that it had established several liberty interests, including employment choice, the ability to contract, marriage, procreation, and child-rearing, among others. ^[45]

In Wisconsin v. Constantineau, ^[46] the Court applied procedural due process analysis when the state of Wisconsin passed a law allowing local police chiefs to forbid the sale of alcohol to certain excessive drinkers by posting notices to all liquor stores. ^[47] The Court found a liberty interest was violated when a person's reputation was defamed because of government action. ^[48] In Paul v. Davis, ^[49] the Court narrowly interpreted Constantineau, finding that the challenged government action must alter the rights of an individual under state law to invoke a liberty interest. ^[50] In Constantineau the state deprived the plaintiff of the ability to buy consumer goods, whereas in Paul the state simply posted notice of the conviction of a crime. ^[51] Liberty and property are not expressly defined in the United States Constitution nor by the Court; however, to invoke the Due Process Clause an individual must claim some protection that connects to a recognized liberty or property interest. ^[52]

D. Goss v. Lopez: Creating a Protected Property Right in Continued Public Education

The United States Supreme Court has viewed education as one of the most essential governmental functions. ^[53] When the Court hears a case involving education, it must not use a textualist approach, but it must instead consider education in its modern state. ^[54] In Goss v. Lopez, ^[55] the Court strengthened the right to education by first finding a constitutionally protected property interest in continued public education. ^[56] Second, due to the length of the students' suspension, the Court established a constitutionally protected liberty interest in the students' reputation. ^[57]

Students from various public schools in Columbus, Ohio brought a class action against administrators of the Columbus Public School System alleging the imposition of ten-day suspensions violated the students' rights to due process. ^[58] The United States District Court for the Southern District of Ohio declared that the students were denied due process because they were suspended without a hearing. ^[59]

The United States Supreme Court subsequently found that the state law created a property...