200503cover
Things are only impossible until they’re not.
– Jean-Luc Picard
THE
BULLETIN
Volume 73 | Issue 2
March 2005

Due Process and Fairness in Student Affairs: How to do all that is due

Adam M. Peck

College unions were conceived as transforming organizations founded on the ideal that an entity that fostered free and open debate would teach its members important lessons about leadership and citizenship. For more than 100 years, they have been doing just that. But this responsibility carries with it a duty to not only practice the skills associated with these tenets, but to understand how and why they are important. Principal among these beliefs is the importance of fairness, both in the application and development of policy on college campuses and in college unions.

In addition to the historic foundations of the college union, there are at least two guiding reasons to focus on making fair decisions: compliance with the law and the modeling of fair decision making to the next generation of decision-makers. You cannot have one without the other. Operating outside of the law is a bad example to set, and will be indirectly responsible for the unethical behavior of those who see it and choose to act accordingly when given the chance. As Aristotle articulated in “The Politics,” “The young must learn to obey a free government of which they will eventually become members; and in doing so they will be learning to govern when their turn comes” (in Barker, 1958, p. 314).

Most people desire to make decisions that are just. However, how to do that in a tangible way usually is not a skill taught to burgeoning administrators. Some may consider the development of a fair process as something that can be accomplished by complying with a regimented set of guidelines designed to input facts and output fair decisions. But decisions are not judged in isolation. Seldom would someone determine whether a decision was fair independent of the process used to arrive at that decision. To judge the decision, a number of factors are considered, including information about the decision-maker, the process, and the context in which it occurs.

Does this mean that fairness is all relative? From a philosophical point of view, does the importance of perspective in determining fairness mean that it is fruitless to consider if a given decision is fair because those who are affected negatively generally will consider it to be unfair? Well, fairness—like truth and beauty—is in the eye of the beholder. But to paraphrase Chief Justice Potter Stewart’s comments about another hard to nail down subject, we know it when we see it (Jacobellis v. Ohio, 1964).

Making fair decisions is a complicated and delicate matter and requires one of the most important skills the profession has to teach: critical thinking. While many colleges and universities have policies in place to help decision-makers make good decisions, there is still a great deal of ambiguity surrounding this subject. However, we can look at decision making in a legal and ethical framework to ensure decisions are most fair and that fair decision making is modeled to students.

Making legal decisions

It is a common expression among lawyers that the law is a floor, not a ceiling. This is to say that the law is concerned with the minimum standards individuals must meet, not with what is necessarily just. This is not to say that it is unimportant to make decisions that are legally appropriate or constitutionally supported. In fact, it is more important now than ever before. Stevens (1999) reports that, “Over the past several decades, American courts have experienced an explosion in the number of lawsuits filed to redress an array of manifest grievances and perceived injustices. Institutions of higher education have not escaped the impact of this explosion in litigation” (pp. 1–2). “These changes,” says Winston, et al. (2001), “C9 make a knowledge of the law essential for every student affairs practitioner” (p. 108).

One of the most important concepts to master is due process of law. The term “due process,” though frequently invoked, is often misunderstood. There are many misconceptions about what it is and what it requires. In its simplest form, it is the requirement that important decisions be made fairly when they are made by the state or federal government. Western conceptions are largely owed to the Magna Carta, and the U.S. Constitution guarantees it in both the Fifth (federal) and 14th (states) Amendments. It is important to note that due process in America is, for the most part, shaped by case law. This means that there is not a particular law on the books that dictates exact guidelines for meeting the standards of due process. Therefore, its application in a variety of legal situations can be somewhat ambiguous. However, there is some general agreement on what is required to meet these standards.

Professionals at private colleges and universities may have taken special note of the fact that the words “federal” and “state” appeared in the previous paragraph with regard to the types of decisions that require institutions to meet the standards of due process. This may lead some to question,“Does this mean that private colleges and universities are exempt from meeting the standards of due process?” For the most part, yes. “Does this mean that they are not required to be fair?” In a word, no.

Though the requirements of due process do not as readily apply to private schools, Kaplin and Lee (1997) advise that “The private school administrator, like his or her public counterpart, should not assume a legal freehand in promulgating C9 rules” (p. 336). Silverglate and Gewolb (2003) add that while “Private universities are not required to promise fair procedures to their students, C9 nearly all universities have student handbooks and judicial manuals that set out rules and standards for their student judicial systems” (p. 36). These are intended to explain to students what procedures will be given to them and what will be required of them when common situations arise. Some courts have held that these rules actually make up a kind of contract with students. This implies that if they choose not to follow their own rules, universities are in breech of this contract (Hawke, 2001). As Hawke (2001) asserts, “The basic principle of contract law is also one that lies at the heart of morality: people have to live up to their reciprocal promises” (p. 36).

What is due process?

Now that the issue of who must provide due process of law is clarified, it seems advisable to arrive at a working definition for due process. “Black’s Law Dictionary 6th Edition” (1990) defines due process as: “The right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense” (p. 500). It also includes the right “to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved” (Black, Nolan, & Alibrandi, 1990, p. 500). Silverglate and Gewolb (2003) summarize these requirements, saying: “The consensus established by the courts is that, at the absolute minimum, students C9 are entitled to have notice of the charges against them, a disclosure or explanation of the evidence behind the charges, and an opportunity to contest this evidence” (p. 23). As this implies, due process is a bifurcated concept. Both the decision and the process must be fair. As Stevens (1999) explains, “Due process implies fairness in the substance of the rules that govern and rationality in the procedures by which decisions are made” (p. 1).

Because life, liberty, and property are so central to complying with the standards of due process, it is essential to understand what each entails. This issue is slightly more complicated than it may seem on the surface. For instance, life may refer not only to the right to remain alive but also to maintaining a standard of living. Liberty is more than the freedom from unlawful imprisonment; it also refers to protections against undo restrictions on what we choose to do or have the opportunity to do. Property refers not only to anything that is owned by the individual but has expanded over time to mean anything to which the individual has a right.

A person only has a right to the due process protection of the Constitution when deprived of life, liberty, or property as a result of an action by the state or federal government. This of course begs the questions: How do administrators protect these rights? And what is required to do so?

The process

Dixon v. Alabama State Board of Education has been called, “The classic starting point for an inquiry into the rights of students at state educational institutions” (Jenkins v. Louisiana State Board of Education, 1975, p. 999 in Winston, 2001) and “The path-breaking decision recognizing the due process rights of students at state universities” (in Winston, 2001, p. 121). Winston (2001) explains that the “essential elements of due process outlined in Dixon are fairly straightforward requirements of notice of the charges and an opportunity for a hearing at which the individual can hear the evidence and have the chance to refute it” (p. 123)

To synopsize Dixon, 29 students were expelled for engaging in civil rights activities. Their right to due process was upheld on appeal with the court laying out specific requirements of due process, including:

The notice should contain a statement of the specific charges and grounds which, if proven, would justify [the decision] C9 The nature of the hearing should depend on the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. (Dixon v. Alabama Board of Education; in Hawke, 2001, p. 122)

Based on this statement, it is easy to see that for universities, the existence of notice and a hearing can be primary determining factors to whether due process rights are upheld.

Notice

The court has affirmed time and again that notice is an essential part of due process. Notice, is a two-faceted concept. It includes not only being informed when a proceeding will be held with an appropriate time to prepare, but also a listing of the charges the individual faces and the evidence on which these charges are based. It is only fair that people should know what charges are against them before being called on to refute them. In Mayor of Baltimore v. Scharf, the majority opinion stated: “To dispense with notice before taking property is likened to obtaining judgment without the defendant having ever been summoned” (in Manalo, 2002, p. 41).

When weighing how much due process is needed, beyond gauging the severity of the charge, the administrator should also consider the test established in Mathews v. Eldridge. Silverglate and Gewolb (2003) explain:

As the United States Supreme Court held, C9 courts must consider three factors to see whether a particular protection is required in a given situation: 1) What is at stake for the person? 2) How risky is it that under the current procedures the person will be wrongly punished and how is it that more safeguards would reduce the risk? 3) How costly and time consuming would the new protections be for the government? (p. 20)

Clearly the possibility of being expelled is more severe than being removed from a residence hall or being removed from an officer position in an organization. Each may require a different level of formality in the notice given, but each could arguably require that the standards of due process be met in regard to this notice.

The good news for colleges and universities is that the bar for notice is set pretty low. As Silverglate and Gewolb (2003) point out, “While committed to appropriate notice in theory, the courts, in practice C9 find most notice appropriate” (p. 55). Of course, overall, a desire for fairness will be a good guide. In short, administrators need to consider how much notice is required to be fair, and whether this level of notice will be an undue burden in time or expense.

The hearing

Stevens (1999) calls a fair hearing: “The essence of substantive and procedural due process” (p. 1). But what constitutes a fair hearing? As discussed in a previous section, fairness is highly linked to many other concepts such as lack of bias and a process governed by rules. Galligan (1996) suggests a few others, saying: “The normative aspects of procedures of particular note are said to be neutrality, lack of bias, honesty, an effort to be fair, politeness, and respect for rights” (p. 90). Clearly, these are characteristics that fair-minded persons would strive for in their decision-making processes. Galligan (1996) adds: “This list is by no means complete and might well include matters such as having one’s say and having one’s views taken into account” (p. 90).

So by what standard can we determine that each has had their say? According to Hawke (2001), “Minimum hearing requirements oblige institutions to give students the opportunity to speak and explain their version of the alleged misconduct” (p. 123). However, the details of this are less important. While individual states may have their own laws that dictate how decisions should be made (such as “sunshine” laws or open meeting statutes), due process is mostly neutral on the specifics of how these proceedings are to be conducted. As Hawke (2001) explains, “Hearings may be open to the public or closed at the discretion of the institution or, if given the choice, the student” (p. 123). Other aspects are also, for the most part, at the discretion of the school. Hawke (2001) explains: “Failure to provide the right to cross-examination, to counsel, to transcripts, and to appeal does not violate due process in most circumstances C9 [though] some courts have viewed these as enhancements to due process procedures”(p. 123).

The timing of the hearing is also not overtly specified by the courts. What is assured is that the respondent should be given time to prepare, especially in serious cases that may involve expulsion or suspension for more than 10 days (Winston, 2001). Of course, the timing of the hearing and the sanction should follow the appropriate order; the sanction should only follow a hearing, unless the person is considered to be a danger if allowed to remain on campus (Hawke, 2001). In these sorts of situations, the administrator should try to hold the hearing in a speedy fashion to minimize the inconvenience if the individual should be acquitted of the charges.

While due process is obviously something that concerns student judicial officers, other student affairs professionals should be mindful of the fact that many other decisions might require conformity with due process standards, including: removal of an officer from an office, levying fines and other punishments, and termination of employment.

Of course, there are other standards that may be raised in each of these cases. For instance, the law requires that anyone for whom termination of employment is being considered be given a specific hearing (the description of which stemmed from a 1985 Supreme Court case—Cleveland Board of Education v. Loudermill). This case increased the standard of due process in employment decisions and produced the term “Loudermill Hearing,” a specific kind of hearing necessary in these types of cases. It is important to remember that different situations call for different procedures, and, as always, it would be wise to discuss anything of a high severity with legal counsel.

When evaluating if due process applies, careful consideration should be given to whether the individual stands to lose anything as a result of the action taken. The second question is: Could the thing the individual stands to lose be perceived in any way as life, liberty, or property? If the answer is yes, be prepared to assure that your procedures meet the standards of due process of law.

Beyond legalities

Beyond our legal obligation to students, there are definite educational and ethical obligations as well. Student affairs involves not only teaching about ethics and talking about ethical behavior, but modeling this behavior as well. As Procario-Folley and Bean (2002) point out, one of the primary roles of education in society is teaching ethics “in the classroom, outside of the classroom, and through an environment suffused with concern for high ethical standards” (p. 105). This of course implies that student affairs practitioners understand what constitutes a fair decision.

As suggested previously, one of the most important aspects of ethical decision making is impartiality. If we are truly to be impartial, we must not have a vested stake in any particular outcome. Does that mean that we have no interest in an outcome? Not necessarily. It does mean we should avoid making the decision about something where we benefit either personally or professionally from any outcome. Even the courts require that processes be “free from unreasonable bias” (Silverglate & Gewolb, 2003, p. 92). But how much bias is unreasonable? From an ethical standpoint, each person may need to decide that for themselves. Though one way to limit bias is by offering the right to appeal.

It is important to note that the law does not necessarily require an appeals process, but providing one can greatly enhance fairness. When evaluating whether an appeals process is necessary, consider asking some important questions, such as: Could reasonable people disagree about the decision? Could the decision-maker be seen as having any vested interest in a particular outcome? Is this decision important enough to warrant an appeals process?

Falling prey to self-delusion is part of being human. It is easy for people to justify unethical behavior or to convince themselves that they are doing the right thing, even when they are not. A key to preventing this is awareness of what Josephson (2002) calls: “Obstacles to ethical decision making” (p. 27). For instance, some will assert that they have no choice in a given situation and are forced by external circumstances to do something that they ordinarily would not do, or assert that a given action was within legal boundaries (ignoring ethical ones), or justify a questionable decision because it was not personal, but business—just part of the job. Reliance on such arguments ought to give decision-makers pause and potentially trigger a need to carefully evaluate what personal motives might be influencing the decision. It is possible to be confronted by situations that offer decision-makers little control (sometimes the lesser of two evils is the only choice available). But examining how poor decisions are sometimes rationalized can be a useful tool in looking closely at personal techniques for justifying questionable ethical decisions. After all, it is important to remember that, to paraphrase Max Lerner (1969), when choosing between the lesser of two evils, one is still evil.

Fairness from the other point of view

It is possible (if not common) for a decision to be legal and ethical and still be seen as unfair. It is important to understand what factors lead to determinations of fairness because knowing what people expect can lead to considerations that might otherwise be overlooked. Understanding determinations of fairness can inform as to which aspects of making a fair decision need to be explained most carefully so that others will understand how the decision was made. Ideally this will give us a better chance of conveying that the decision was fair.

Much research has pointed to the outcome of decisions as being of primary importance in people’s determinations of fairness. People desire outcomes that meet their needs. When an outcome is unfavorable, it will often be perceived as unfair (Kulik & Holbrook, 2000). According to fair process effect, if a process is considered to be fair, its outcome will likely be regarded to be fair as well (Collie, Bradley, & Sparks, 2002). However, the converse is also true. As Simerson, L’Heureux, et al. (2000) found, if a process is “irrational, the resultant outcome was almost always seen as inequitable and unfair” (p. 451).

Perceptions of fairness are influenced by many factors. Thibaunt and Walker’s (1975) control theory is among the most influential in the study of fairness. As the name suggests, control theory asserts that a person’s perceptions of fairness are based primarily on the amount of influence given in regard to the manner in which decisions are made (Thibaut & Walker, 1975). In a basic sense, the greater the control, the greater the satisfaction. Because decision control is fairly uncommon, especially in judicial settings, most individuals seek process control, including the opportunity to present one’s side or determine how the decision will be made (Blader & Tyler, 2002). If the individual has neither process control nor decision control, it is less likely that the process will be regarded as (Hagedoorn, Buunk, & Van de Vliert, 1998).

Fairness Theory (Folger & Cropanzano, 1998) asserts that when evaluating the fairness of a decision, possible alternatives are weighed against the actual decision (Collie, Bradley, & Sparks, 2002). The availability of better solutions would cause the evaluator to see the decision as unfair. Of course, people rarely have access to all of the information that the decision-maker has, and sometimes such things as confidentiality can confound things even further. But this also makes a strong case for involving others in decision. First, it can help to brainstorm solutions that the decision-maker may not have considered (if only to be prepared to explain why alternatives were chosen). It also underscores the need for giving the person seeking a fair decision a voice in the process. Others may consider options that could perhaps produce a more fair result. It is easier to consider other opinions before the decision is made, than to have to do so while defending a decision that has already been made.

There are many considerations when seeking to make a fair decision; a fair process alone is not enough. But a concern for fair processes heightens the likelihood that the result will be fair, and that regardless of whether the outcome is positive or negative, it will be accepted as fair by those whom it affects.

Building a foundation

Professionals in college unions and student activities must make important decisions every day, and they must ensure those decisions are fair. Student judicial affairs and termination of employment may be among the most frequently occurring difficult decisions. And, of course, decision-making processes often go beyond the deciding of sanctions or recursions; they often entail deciding who will receive benefits as well. From awarding scholarships to allocating funds to selecting students for honors, an important part of student affairs practice is related to fair processes for distributing benefits as well as costs.

The college union is often storied in metaphor. It has been called the living room of the campus and the conscience of the campus. Fairness, then, is the foundation of the union. The law is its floor, and ethics its pillars. Living up to this creed is worthy of the heritage of college unions. There is no absolute way to ensure fairness. There is not even an absolute way to know what is fair and what is unfair. But compliance with the law, a concern for ethicality, and the designing of processes that lead to fairness are a fair start.

DUEFAQ

Does due process apply to dealings with campus organizations?

In Healy v. James the right for institutions of higher education to discipline student groups was acknowledged (Silverglate & Gewolb, 2003). Therefore, “Colleges may sanction a student association that collectively engages in activities prohibited by university rules” (Silverglate & Gewolb, 2003, p. 84). However, institutions should make sure they are not perpetuating a standard of “guilt by association.” Silverglate and Gewolb (2003) remind administrators that “The misdeeds of a few (or even of a majority) of the members of an association do not always justify disciplinary action against the association as a whole” (p. 84).

Does due process include the right to an attorney?

Though the Sixth Amendment guarantees the right to be represented by counsel, this applied only to criminal proceedings (Silverglate & Gewolb, 2003). For the most part, colleges and universities are not required to allow counsel. Some exceptions include when the stakes are high, the matter is extremely complicated (Silverglate & Gewolb, 2003), or when the action could lead to potential criminal prosecution (Cole, 1994; Rubin & Greenhouse, 1983; in Stevens, 1999).

Does due process require the right to cross-examine witnesses?

In Dixon, it was established that the right to a hearing did not “imply a full-dress judicial hearing with the right to cross-examine witnesses” (Winston, 2001, p. 121), even though it was established in Winnick v. Manning (1972) that “if the credibility of a witness is at issue, cross-examination may be required” (in Winston, p. 124). Based on these rulings, it would be wise to consider allowing respondents to confront their complainant.

Does due process include the right to an appeal?

Due process does not require an appeals process (Winston, 2001). Respondents are only entitled to one fair hearing (Silverglate & Gewolb, 2003) because, as the Supreme Court put it, “If a single hearing is not due process, then doubling it will not make it so” (in Winston, 2001, p. 124).

20 Questions: Fairness considerations at a glance

There are no hard and fast rules for making a process fair, but asking these questions can be an effective tool for considering the fairness of a given process and evaluating eventual outcomes as well.

  1. Is the decision being made at a state or federal institution?
  2. Might this decision deprive someone of life, liberty, or property?
  3. What institutional rules govern how these matters should be handled?
  4. Is the decision-maker vested in any particular outcome?
  5. Can the decision-maker be impartial?
  6. How can the decision-maker assure that no decision will be made before all sides can tell their version of events?
  7. How formal does the hearing need to be?
  8. Does the seriousness of the situation match the nature of the hearing?
  9. Should the proceedings be open to the public?
  10. What local laws or statutes may apply to how this decision should be made?
  11. How will the accused tell his or her side of the story?
  12. What sort of voice should the accused have in the process?
  13. Will respondents be able to confront their accuser?
  14. What sort of notice should be given?
  15. Will the accused have adequate time to prepare?
  16. How will the accused be told about the evidence against them?
  17. Is the process to make the decision rational and orderly?
  18. Does the process consider the best possible decision-making options?
  19. Would an appeals process enhance the fairness of the decision?
  20. If so, who should hear the appeal?

References

Barker, E. (Ed.). (1958). The politics of Aristotle. London: Oxford University Press.
Black, H.C., Nolan, J.R., & Alibrandi, M.N. (1990). Black’s law dictionary, (6th Ed.). St. Paul, MN: West Publishing Corp.
Blader, S.L., & Tyler, T.R. (2002). What constitutes fairness in work Settings? A four component model of procedural justice. Human Resource Management Review, 13, 107–126.
Collie, T., Bradley, G., & Sparks, B.A. (2000). Fair process revisited: Differential effects of interactional and procedural justice in the presence of social comparison information. Journal of Experimental Social Psychology, 38, 545–555.
Folger, R., & Cropanzano, R. (1998). Organizational justice and human resource management. Thousand Oaks. CA: Sage.
Galligan, D.J. (1996). Due process and fair procedures. New York, NY: Claendon Press.
Hagedoorn, M., Buunk, B.P., & Van de Vliert, E. (1998). Opening the black box between justice and reactions for unfavorable outcomes in the workplace. Social Justice Research, 11, 41–57.
Hawke, C.S. (2001). Computer and internet use of campus: A legal guide to issues of intellectual property, free speech, and privacy. San Francisco, CA: Jossey-Bass.
Josephson, M. (2002). Making ethical decisions. Marina del Rey, CA: Josephson Institute of Ethics.
Kaplin, W.A., & Lee, B.A. (1997). A legal guide for student affairs professionals. San Francisco, CA: Jossey-Bass.
Kulik, C.T., & Holbrook, R.L. (2000). Demographics in service encounters: Effects of racial and gender congruence in perceived fairness. Social Justice Research, 13, 375–402.
Lerner, M. (1969). Actions and passions: Notes on the multiple revolution of our time, New York: Gateway/Associated Faculty.
Procario-Foley, E. G., & Bean, D.F. (2002). Institutions of higher education: Cornerstones in building ethical organizations. Teaching Business Ethics, 6, 101–116.
Silverglate, H.A., & Gewolb, J. (2003). Due process and fair procedures on campus. Philidelphia, PA: Foundation for Individual Rights in Education.
Simerson, G., L’Heureux, T., Beckstein, B., ZiaMian, M., Dembowski, J., & Freshman, M. (2000). What are used to judge the fairness of retrenchment actions? Journal of Business and Psychology, 14 (3) 443–457.
Stevens, E. (1999). Due process and higher education: A systemic approach to fair decision making. ASHE-ERIC Higher Education Report (Vol. 27. No. 2). Washington, DC: The George Washington University, Graduate School of Education and Human Development.
Thibaut, J., & Walker, L. (1975). Procedural justice: A psychological analysis. Hilsdale, NJ: Lawrence Erlbaum Associates.
Winston, R.B., Creamer, D.G., Miller, T.K., & Associates (Ed.) (2001). The professional student affairs administrator: educator, leader, and manager. Lillington, N.C.: Edwards Brothers.

CASES CITED
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
Dixon v. Alabama State Board of Education, 294 F.2d 150 (Fifth Cir. 1961).
Denied, 368 U.S. 930 (1961).
Jacobellis v. Ohio, 378 U.S. 184 (1964).
Jenkins v. Louisiana State Board of Education, 506 F.2d 992 (1975).
Mayor of Baltimore v. Scharf, 54 Md. 499, 519 (1880).
Mathews v. Eldridge, 424 US 319 (1976).