SUBJECT: DUE PROCESS GUIDELINES IN ALLEGED DRUG ABUSE INCIDENTS

APPLICABILITY: STUDENTS

H.R. 253 and S.R. 645 of the Regular Session of the 70th Legislature directed the Higher Education Coordinating Board to "draw up procedural guidelines for submission to and separate approval by the governing board of each institution of higher education to ensure that students alleged to possess illegal drugs are guaranteed rights of due process prior to administrative disciplinary action." In its resolutions, the Legislature recognizes that student disciplinary actions in higher education institutions must conform to the requirements of due process of law and the "rudimentary elements of fair play."

In the last two decades, the courts have offered much guidance on this subject, but no single decision has prescribed a single set of rules that may be applied in all cases. Due process is a concept of fundamental fairness. It is not a fixed or inflexible concept unrelated to time or circumstances. The courts have defined it broadly as a "gradual process of judicial inclusion and exclusion." Thus, in disciplinary actions, the greater the interest of the student at stake, the greater the procedural safeguards of the higher education institution should be.

There is no doubt that the interest of the student is an important one in a case involving sanctions such as suspension or expulsion. In such cases, the institution's procedures must be fundamentally fair and well designed to promote reliable fact-finding. The landmark case involving due process standards for student disciplinary actions is Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). In that case, the court held that tax-supported educational institutions must give students notice and the opportunity for a hearing before expulsion for misconduct. In Goss v. Lopez, 419 U.S. 565 (1975) the United States Supreme Court followed Dixon and held that "[a]t the very minimum, students facing some kind of suspension...must be given some kind of notice and some kind of hearing." Since these two decisions, the courts have considered the question of "what process is due" in cases of suspension and expulsion have generally agreed on the following basic requirements:

(1) adequate notice of the specific charges and the nature of the evidence to be presented against the student;

(2) some opportunity for the student to present his position and produce evidence;

(3) a report of the results and findings of the hearing available for the student's inspection, and

(4) that the disciplinary action should be supported by substantial evidence.

In making their decisions, the courts have been careful to recognize the special nature of academic Institutions and their educational objectives. One mission of higher education institutions clearly relevant to student disciplinary actions is to foster an academic community that imparts ethical and moral values to its students. Disciplinary rules and procedures are one essential way in which higher education institutions foster these important values. As one court observed, the "discipline of students in the educational community is, in all but the case of irrevocable expulsion, a part of the teaching process." Thus, in delineating the rights of students in disciplinary actions, the courts have not required higher education institutions to establish adversarial procedures similar to the processes of criminal law, "which are far from perfect, and designed for circumstances and ends unrelated to the academic community." The courts have recognized that to impose such "intricate, time consuming, sophisticated procedures" on educational institutions "would frustrate the teaching process..."

Pursuant to H.R. 253 and S.R. 645, the Board submits the attached procedural guidelines for consideration by the governing board of each institution. The rules have been derived from case law. Their use by a higher education institution would ensure in the vast majority of cases that a student has received due process of law as required by the Constitutions of the United States and Texas. However, it is important to understand that the rules constitute only minimal requirements in cases of suspension or expulsion. In some cases, especially when criminal charges are pending against the student, due process may require more stringent standards. In all cases, institutions are encouraged to seek competent legal counsel.

The Board does not intend that the attached rules should be adopted verbatim by the governing board of each institution. In submitting the rules, the Board recognizes "the right of academic communities consistent with due process and fundamental fairness, to devise appropriate procedures for student discipline on campus." Given their diversity, each institution should be free to "create procedures tailored to its particular traditions and needs." As one court stated, "within limits of due process, institutions must be free to devise various types of disciplinary procedures relevant to their lawful missions, consistent with their varying processes and functions, and which do not impose unreasonable strain on their resources and personnel." Keeping in mind the foregoing, each institution shall adopt policies or review existing policies to insure that the following elements of due process are substantially complied with.

1. A written statement of the charges against an individual should be made available within a reasonable time prior to a hearing. While what constitutes reasonable notice is unclear in the developed case law, we recommend at least three (3) days since that is the notice required for hearings under Rule 21 of the Texas Rules of Civil Procedure. The charges should be in sufficient detail to know specifically what he/she is charged with, and what is the potential punishment so as to enable the student to present a defense at the hearing.

2. An opportunity for the student to review the evidence prior to the hearing shall be provided. Notice should be provided far enough in advance of hearing to allow ample time to prepare a defense.

3. Advance notice of the time, place and date of the hearing shall be provided the student. Again, we recommend at least three days.

4. An opportunity for a hearing should precede suspension or expulsion unless a student's presence on campus poses a danger to persons, property, or the academic process. If interim suspension is necessary before a hearing can be provided, the institutions must make a reasonable attempt to meet with the student, discuss the charges and evidence, and allow the student an opportunity to respond so as to have the opportunity to correct any mistakes in the factual record even at this preliminary stage.

5. A hearing should be held before an impartial person or persons having the power to recommend expulsion or suspension. "Impartial" is defined as a person who has no personal stake in the outcome of the proceedings and who is not a witness to the events in issue and may include an institution's Dean of Students or his/her designee.

6. Representation by legal counsel is not required but may be allowed according to local policy. When there are pending criminal charges against the student, or when criminal charges are likely, an attorney shall be allowed to advise the student during the hearing. In addition, if the institution utilizes an attorney to present the case, the student shall have a similar right to utilize an attorney.

7. An opportunity must be provided for the accused to present his/her own version of the facts and to present other evidence in support of the case.

8. The right to hear evidence and ask questions of witnesses either directly or through the hearing officer must be allowed.

9. The institution has the burden of proving its case by the preponderance of evidence. The preponderance of evidence means proof that leads a reasonable person to find that the facts in issue are more likely to have occurred than not.

10. A determination of the facts should be based only on the evidence as presented.

11. A student may not be compelled to testify in his/her own behalf. And if the student chooses not to testify, no inference may be drawn from the failure to testify. If the student does testify, he/she may be fully cross- examined.

12. A written statement of the findings should be provided.

13. The right to make a record of the hearing at an individual's own expense should be preserved. Each institution must provide for the recording of the proceeding either by court reporter, electronic recording, or notes or minutes taken by an impartial recording secretary. The record must be retained by the institution for a reasonable period of time.

The above constitute the minimum constitutionally mandated due process. In addition to these guaranteed rights, the following are widely accepted practice to ensure fairness in serious disciplinary offenses:

1. Right to appeal to higher authority within the institution.

2. Right to cross-examine witnesses.

3. Right for accused to have counsel at hearing, not  necessarily to participate, but to advise.

Federal statutory law also requires disciplinary proceedings to be closed to the public upon the accused's request.