Understanding Procedural and Substantive Due Process Rights on Campus
| | Title IX
The right to due process is widely recognized but not well understood. Broadly, the concept ensures that those accused of wrongdoing are treated fairly before a penalty is imposed. But due process looks vastly different in various situations.
Moreover, there are two distinct types of due process: procedural due process, which ensures that certain rules are followed during the course of assessing responsibility after accusations have been made, and substantive due process, which protects against overreaching by those in positions of authority.
The due process that applies when a student is accused on campus of violating Title IX or the school’s code of conduct is quite different from the due process rights guaranteed in criminal proceedings. In fact, the rights will vary to some degree on every campus and in every case, because protective measures will be based in part on school policies and the severity of the alleged infractions.
Anytime a student is accused of wrongdoing, it is important to understand the due process protections that should be honored in the situation and know how to protect the student’s rights. This is one area where the assistance of an experienced student defense lawyer can prove invaluable.
What’s the Difference? Procedural vs. Substantive Due Process
Procedural due process is what most people think of when they consider due process. It involves the rules that should be followed when someone faces punishment for violating the law or breaking rules. Broad procedural due process rights dictate that before the government (or other authority) can deprive any individual of their “life, liberty, or property,” those individuals must be given:
- Notice of the charges against them
- An opportunity to defend themselves against the accusations
- A proceeding in which the decision regarding their guilt is made by a neutral party
Substantive due process, on the other hand, is a newer concept that is more difficult to define. For centuries, legal systems have determined that someone accused of an offense had certain procedural rights that should be respected. The idea that there is a substantive component to due process rights has been a part of jurisprudence for less than 100 years.
The concept of substantive due process holds that the government or other authorities must have a reason for taking actions that deprive people of their lives, liberty, or property. They cannot act arbitrarily in doing so. Substantive due process protects against treatment considered excessive or unreasonable.
Due Process on Campus
The 5th and 14th Amendments to the U.S. Constitution specify that the government cannot deprive someone of life, liberty, or property without due process of law. When a student is accused of violating school rules, the authoritarian body responsible for adjudicating the case is not the government. Nevertheless, courts have repeatedly found that students have certain due process rights in campus proceedings. Moreover, in proceedings involving allegations of Title IX violations, federal law requires schools to provide certain procedural safeguards.
If a school accuses a student of wrongdoing and could penalize the student, that impacts their ability to complete their education, so those students have both property rights and liberty rights that merit due process protection. The investment in education creates the property right, and the student’s interest in maintaining a good reputation establishes a liberty right. Because a student’s property and liberty rights are at risk in a campus disciplinary proceeding, that student is entitled to due process. But the level of protection required can vary significantly.
A student accused of wrongdoing can face consequences that prevent them from completing their education and fulfilling career goals, and they risk damage to their reputation that can permanently destroy their good name. This is a significant risk, greater than that faced by someone accused of violating parking regulations or littering laws. However, the risk for students in campus disciplinary proceedings is not as great as the risk faced by those accused of violent criminal conduct who could be permanently deprived of life or liberty due to incarceration or capital punishment.
Due process rights are tailored to risk and other factors. Where a student faces potential expulsion, such as in situations where a student is accused of sexual assault in violation of Title IX, students are generally guaranteed the right to have their case adjudicated in a full hearing. (This guarantee exists under the current Title IX rules, but it has not always been in place.) Accused students generally have the right to question those who have made accusations against them.
When a disciplinary matter is considered less serious, students may not have the right to a hearing or to cross-examine. The case may be adjudicated in writing or through an informal process.
Protecting Due Process Rights
In any campus disciplinary matter, it is essential to ensure that school rules provide due process protections that meet legal requirements and that the school adheres to the procedural rules it has established. Experienced student defense attorneys often find one or the other to be lacking, and that can enable a skillful attorney to help a student obtain a finding that they are not responsible for a violation.
This result may come during the initial campus proceedings or through an appeal on campus or in court. When a student is responsible for a violation, but the penalty assessed is out of proportion to the infraction, then an attorney may be able to demonstrate why this represents a violation of the student’s substantive due process rights.
Protecting Student Rights Throughout the Country
At Nesenoff & Miltenberg, we have experience with student defense and protection of due process rights that few firms can match. We work with students on campus and in courts throughout the U.S., and we understand the nuances that distinguish students’ rights in different campus settings depending on local and regional judicial interpretations.
We invite you to schedule a confidential consultation to discuss the assistance we may be able to provide in your situation. Just call us at 212-736-4500 or contact us online to get started.