Knowledge, practices and opinions of college judicial affairs officers concerning student rights

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Knowledge, practices and opinions of college judicial affairs officers concerning student rights
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Thesis (Ph. D.)--University of Florida, 1995.
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Vita.
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by James Donaldson Bostic, Jr.

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KNOWLEDGE, PRACTICES AND OPINIONS
OF COLLEGE JUDICIAL AFFAIRS OFFICERS
CONCERNING STUDENT RIGHTS






By

JAMES DONALDSON BOSTIC, JR.


A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE
UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

1995


UNIVERSITY OF FLORIDA LIBRARIES













ACKNOWLEDGMENTS


I received tremendous support from a number of individuals that enabled

me to complete this thesis. First, I want to thank my family, Debra Jo, Todd, and

Jordan, for their love and encouragement. Sometimes they had to do without and

made sacrifices for Dad to see this through.

I also want to recognize all of my committee members who I know as

professionals and as friends. Dr. Gerardo M. Gonzalez provided hands-on

direction and coaching from start to finish. It was in his class that the formulation

of the foundation for this study occurred. He is a visionary and I appreciate him.

Dr. Mary-Howard Hamilton is a new star in our department and has been there

when I needed her. She has contagious enthusiasm and always comes up with the

right answers. Dr. Art Sandeen, one of the good guys at the University of Florida,

is forever positive, interested, and encouraging. He has a special spirit that

nourishes students and the University.

Special acknowledgment is appropriate for Dr. Joe Wittmer whom I met

22 years ago as an entering freshman. I count Joe in the small group of influential

figures in my life. He has influenced my development as a person and as a

professional. The skills I learned from Joe and the Counselor Education program

are a part of me and have benefited me in all my activities and I know of no one

who is more sincere and caring that Joe Wittmer. The University of Florida is a

better place because of him.













Lastly, I appreciate the drive and leadership that Dr. Bill Campion, our President at

Central Florida Community College, has provided. He establishes an expectation

of excellence and accomplishment that has enabled me to pursue academic goals as

well as professional ones.














TABLE OF CONTENTS

ACKNOW LEDGM ENTS............................................ .................................. ii

A B STR A CT ....................................................................................................... vi

CHAPTERS

1 INTRODUCTION ............................................................................... 1

Statement of the Problem .......................... ........................... 5
Purpose of the Study ................................................ ......................... 6
Research Questions .................................................... 7
Significance of the Study ............................ .......................... 9
Theoretical Framework........................... ............................ 9
M ethodology..................................................... .......................... 14
Definition of Terms .................................. .. ....... ................. 15
Organization of the Remainder of the Study........................................ 16

2 REVIEW OF THE RELATED LITERATURE.................................. 17

The In Loco Parentis Doctrine......................................... ............ 17
The Decline of In Loco Parentis ....................................... .......... .. 21
The New In Loco Parentis........................... ... .......................... 28
Contract Theory ................................... ............................ 31
Implied Contract Theory........................................................ 34
The Contract to Educate........................... ............................ 36
Fiduciary Theory .................................... ... ........................... 41
Privilege Theory ........................................ ................................... 43
The Constitutional Theory................................................................. 45
Due Process ............................................................... 47
Judicial Systems Before 1961 .......................... .......... .......... ... 56
The "General Order"............................ ....... ................... 61
Student Conduct Codes............................. ........................... 62
Implications & Standards............................ ......................... 67
Dependent Variables............................ ... ......................... 71
Sum m ary................................................................... ..........................72








3 RESEARCH METHODOLOGY ........................................................ 75

Overview of the Study........................... ............................ 75
Research Questions ............................................... .......... ............ 76
Relevant Variables........................ ............................ 78
Population, Sample and Procedures.............................................. 78
Instrument........................................................... 79
Pilot Study ............................................................... 82
Data Analyses.................................... ......... ........... 84
Limitations of the Study ............................. ......................... 85

4 DATA ANALYSES AND RESULTS............................................ 86

Data Collection and Response Rates.................................................. 86
Description of Research Sample ..................................................... ... 87
Data Analyses Procedures ........................... .............................. ... 89
Research Questions ........................... ........................... 91

5 DISCUSSION.......................................... ......... 121

Student Rights...................................... ......... ........... .. 121
Opinions.................................. ............... ...... 123
Current Practices.......................................... ......... 126
Level of Knowledge ......................... ...................... ... 128
Theory ......................................................... ......... 131
Judicial Officer Recommendations ........................................... ......... 134
Sum m ary........................................................................ 138
Recommendations for Future Research.............................................. 139

APPENDICES

A JUDICIAL OFFICERS SURVEY.................................................. 142

B COVER LETTER ...................................................... 146

C FOLLOW-UP NOTICE.................................................. 147

D RECOMMENDATIONS ....................................................... ........ 148

REFERENCES............................................ ........ 168

BIOGRAPHICAL SKETCH........................................................ 173













Abstract of Dissertation Presented to the Graduate School of the
University of Florida in Partial Fulfillment of the Requirement
for the Degree of Doctor of Philosophy

KNOWLEDGE, PRACTICES, AND OPINIONS OF COLLEGE
JUDICIAL AFFAIRS OFFICERS CONCERNING STUDENT RIGHTS

By

James Donaldson Bostic, Jr.

December, 1995

Chairman: Dr. Gerardo M. Gonzalez
CoChairman: Dr. Mary Howard-Hamilton
Major Department: Counselor Education

Debate and controversy surrounding college student rights and the lack of

consensus and direction concerning such rights provided the incentive for this

study. In this study the researcher sought to examine the perceptions of judicial

officers regarding student rights, the opinions of judicial officers toward current

judicial systems, the current practices of judicial officers regarding student

sanctions, and the level of knowledge held by judicial officers regarding student

discipline in public higher education. In addition, student-educational institutional

models were examined and recommendations from judicial officers for future

practice were gathered and discussed.

One thousand five hundred and sixty-eight four- and two- year institutions

were distributed the Judicial Officers Survey endorsed by the Association of

Student Judicial Affairs. Forty-seven percent of the four-year institutions and











30% of the two-year institutions participated in the study. Conclusions and

recommendations were developed from data analyses that yielded 19 tables, six

figures, plus 231 recommendations from judicial officers.

The results of this study support a number of conclusions. First, there is an

established core of student rights being observed in public higher education.

Second, higher education judicial officers are not advocating major changes in the

current judicial system. Third, there was consensus from the judicial officers

surveyed regarding a number of sanctions regardless of the size of the institution

(two or four years), but there were some distinctions regarding sanctions between

the four and two year institutions' respondents. Fourth, judicial officers

demonstrated adequate levels of knowledge regarding student discipline. Fifth,

contract theory was the clear choice of the judicial officers surveyed while in loco

parents was ranked last.

Relationships between judicial officers' title, gender, ethnicity, years of

experience, degree, institutional type and institutional size, and their opinions,

perceptions, knowledge and current practices were also examined. No major

differences were observed, with the exception of a few differences between four-

and two-year institutions.

Lastly, the judicial officers participating in this study called for less

legalism, more developmental discipline, plus increased training and professional

development. They suggested increased involvement in off-campus activities of

students, as well as issues such as harassment, random violence, date rape, and

legal issues related to computer privacy, bulletin boards and copyright

infringement, as recommendations for future research and consideration.













CHAPTER 1
INTRODUCTION


The student-educational institution relationship, specifically college student

rights in disciplinary cases in higher educational institutions, was the central focus

of this study. In the study the researcher compared current policies, practices,

perceptions, and perspectives of public higher education judicial officers with

regard to student rights in disciplinary cases. A further purpose of the study was

to examine the recommendations that judicial officers in public higher education

have for future practice.

In Amesto v. Florida State University College of Law (1992), a female

student accused of cheating brought suit against the university claiming that her

due process rights had been violated. The court ruled that in the hearing

conducted by the university, procedures established in the Florida Administrative

Code were appropriately followed. Therefore, the hearing satisfied the required

due process afforded to Arnesto.

In another case, Bleicher v. University of Cincinnati College of Medicine

(1992), a medical student sued the University of Cincinnati claiming a violation of

her due process rights, as well as breach of contract, when she was dismissed for

poor scholarship. On February 13, 1992, the appellate court, ruling in favor of the

University, stated:


The trial court was required to defer to academic decisions of the
college unless it perceived... such a substantial departure from










accepted academic norms as to demonstrate that the person or
committee responsible did not actually exercise professional
judgment... (p. 783)

Not all student cases are resolved in favor of colleges and universities,
especially in "non-academic" areas. In a 1989 case, Russell v. Salve Regina

College, a nursing student won $43,903.45 in a claim against Salve Regina College

located in Rhode Island. Salve Regina had required the student to withdraw from

the nursing program for health reason after she completed 124 of the 128 hours

required. The college claimed that because the student was overweight, as a

nurse, she would not be a good model of health for her future patients. The court

awarded damages to the student, based on a jury verdict finding breach of

contract, but found against the student on complaints of handicapped

discrimination, violation of due process, and negligent infliction of emotional

distress.

The cases cited dramatically demonstrate that the legal relationship

between institutions of higher education and students is dynamic and ever-

evolving. Students and institutions, in an increasingly litigious atmosphere, could

find themselves in court endlessly contesting issues ranging from breach of

contract to violation of due process.

The relationship between students and educational institutions of higher

education has changed profoundly over the years. There was a time when college

students were treated as children. In Gott v. Berea (1913) the court stated that

college officials act:

in loco parents concerning the physical and moral welfare and
mental training of the pupils, and we are unable to see why, to that










end, they may not make any rule or regulation or the government of
betterment of their pupils that a parent could for the same purpose
(p. 206)

Manning (1990) states, "The way in which institutions and students relate

grew from single beginnings through a stage of in loco parents, where the college

or university stood in the place of the parent, to today's situation, which many

authors describe as a contractual relationship" (p. 4).

The student-institutional legal relationship includes numerous areas of

academic and student conduct, central to which is the manner in which institutions

handle and process disciplinary proceedings. This relationship was dramatically

changed in 1961 with a landmark case, Dixon v. Alabama State Board of

Education. Upon appeal, several African-American students at Alabama State

College won a judgment finding that the due process clause of the Fourteenth

Amendment requires notice and a hearing before a disciplinary sanction can occur.

In addition, the court established the principle that students have a property

interest in their education and, therefore, a right to procedural due process in the

conduct of disciplinary proceedings. Furthermore, the Dixon court established

standards that were recognized by the Supreme Court and later extended to

secondary schools in Goss v. Lopez (1975).

Further detail was provided in Esteban v. Central Missouri State College
(1967). In this legal decision the court ordered the school to provide the following

protection:

1. A written statement of the charges, for each student, made available

at least ten days before the hearing;











2. A hearing before the person having power to expel or suspend;

3. The opportunity for advance inspection of any affidavits or exhibits

the college intends to submit at the hearing;

4. The right to bring counsel to the hearing to advise them (but not to

question witnesses);

5. The opportunity to present their own version of the facts, by

personal statements, as well as affidavits and witnesses;

6. The right to hear evidence against them and question adverse

witnesses;

7. A determination of the facts of each case by the hearing officer

solely on the basis of the evidence presented at the hearing;

8. A written statement of the hearing officer's findings of fact;

9. The right to make a record of the hearing.

The Fourteenth Amendment's due process clause also applies to students

facing suspension or dismissal for deficient academic performance. The landmark

case, Board of Curators of the University of Missouri v. Horowitz (1978),

established protection via accordance of procedural due process in academic

dismissals. However, the interpretation of procedural due process in academic

hearings tilts heavily toward the discretion of the institution and its administration.

As Kaplin (1990) stated, "Even though academic dismissals may be even more

damaging to students than disciplinary dismissals, due process affords substantially

less protection" (p.307). Kaplin further writes:

Courts grant less protection because they recognize that they are
less competent to review academic evaluative judgment than










factually based determinations of misconduct and that hearings and
the attendant formalities of witnesses and evidence are less
meaningful in reviewing grading than in determining misconduct
(p. 307)

The entire area of student-educational institution relationships, in particular

issues regarding student rights, is evolving rapidly as it is being challenged and

litigated. The evolving nature of case law and the murkiness of the depth of

procedural due process afforded students by the courts is a clear indication that it

is imperative that institutional administrators understand and interpret the courts'

decisions affecting student rights accurately and completely.


Statement of the Problem
The legal relationship between students and public higher education

institutions is shifting and changing as courts and institutions struggle to come to

terms with student-educational institution relationships. Precedent-setting cases

such as Dixon (1961), Esteban (1967), and Horowit (1978) have provided some

foundation to the area of student rights in the disciplinary process. Yet these

principles are often misunderstood and misapplied, and sometimes ignored by

higher education judicial officers. Additionally, the courts have failed to

communicate a coherent, clear and consistent approach to guide judicial officers in

the higher education disciplinary process. Legal and academic researchers have

also failed to agree and articulate a clear code or direction to guide judicial

officers.

The increasing litigious nature of society in the 90's, the empowerment of

student consumers, as well as the adversarial nature of the student-educational

institution relationship in this decade, contribute to the confusion and disputes that











currently occur. Without integrated and consistent interpretation (by judicial

officers throughout the United States) of legal opinions, case law, and "settled"

practice and procedures, students will continue to turn to the courts for

satisfaction when institutional decisions are objectionable.

Given the current confusion, if a consensus were developed from

interpretation of case law, court decisions, and recommendations from judicial

officers, students and administrators would benefit by having agreed-upon

guidelines for the student-educational institution relationship.


Purpose and Research Ouestions

"The direction concerning student rights that is provided by the courts and

legislation for institutions of higher education are often viewed by administrators

and legal counsel as ambiguous, erratic, and broad" (Szablewicz & Gibbs, 1987,

p. 71). Increased debate and threat of further controversy surrounding student

rights provide the incentives for this study.

The purpose of this study was to determine the perceptions of judicial

officers with regard to student rights in student disciplinary proceedings, and to

examine the judicial officers' opinions, practices, and level of knowledge regarding

student discipline in public higher education. Additionally, the recommendations

that judicial officers in public higher education have for future practice were

examined.

More specifically, the researcher attempted to answer the following

questions:











1. What do judicial officers perceive are the rights of students in

disciplinary proceedings in public higher education institutions?

2. What are the current practices of judicial officers with regard to

student rights in disciplinary cases in public higher education?

3. What are the opinions of judicial officers toward the current judicial

system in public higher education?

4. What is the level of knowledge and understanding of existing law,

with regard to student rights in disciplinary cases, of judicial

officers in public higher education institutions?

5. What do judicial officers believe has been the biggest influence on

student judicial systems in the last decade?

6. What model of the student-educational institution relationship do

judicial officers believe is most appropriate?

7. Is there a significant relationship between personal

characteristics of the judicial officers including gender, ethnicity

highest degree earned, years of experience in current position, and

title, and (a) their perceptions of the rights of students in

disciplinary proceedings in public higher education institutions; (b)

their current practices with regard to student rights in disciplinary

cases in public higher education institutions; (c) their opinions

toward current judicial systems in disciplinary cases in public higher

education institutions; and (d) their level of knowledge and

understanding of existing laws with regard to student rights in

disciplinary cases in public higher education institutions?











8. Is there a significant relationship between institutional

characteristics including enrollment size, and classification such as

college, university or community college and (a) judicial officers'

perceptions of the rights of students in disciplinary proceedings in

public higher education situations; (b) current practices with regard

to student rights in disciplinary cases in public higher education

institutions; (c) judicial officers' opinions toward existing judicial

systems in public higher education institutions; and (d) the

judicial officers' level of knowledge and understanding of existing
law with regard to student rights in disciplinary cases in public

higher education institutions?
9. Is there a significant relationship between the model of the student-

educational institution relationship that judicial officers believe is

most appropriate and (a) judicial officers' perceptions of the rights

of students in disciplinary proceedings; (b) the current practices of

judicial officers with regard to student rights in disciplinary cases;

(c) the opinions of judicial officers toward existing judicial systems;

and (d) judicial officers' level of knowledge of existing law with

regard to student rights in disciplinary cases in public higher
education?

10. What recommendations do judicial officers have for future practice?











Significance of the Study

As a consequence of the lack of clear guidelines and structure to guide the

student-educational institution relationship, there is inconsistency and uncertainty

on the part of university judicial administrators (Fowler, 1984).

First, by identifying the relevant cases, analyzing them, and synthesizing

case law and academic research, the results of this study will assist others in better

understanding what the courts have mandated for student disciplinary systems and

processes.

Secondly, through interpreting and integrating judicial reasoning and

academic research, an accurate analysis of the student-educational institution

relationship, as related to student conduct and disciplinary proceedings, can be

developed.

Lastly, recommendations for future practice are reported and examined

from surveying the judicial officers from public institutions of higher education

throughout the United States.


Theoretical Framework

Courts and institutions of higher education are currently struggling to

define and better understand the student-educational institution relationship. As

Nordin (1982) stated, "In cases involving student rights, the courts have failed to

articulate any clear legal concept" (p. 141). This failure to define and consistently

follow a theory respecting the student-educational institution relationship has led

to considerable confusion for institutions, administrators, and students. The











doctrine of in loco parents, although not defined as a theory in the true sense, and

contract theory give support to this study.

In Loco Parentis

Historically, the in loco parents doctrine has governed the relationship

between students and institutions at all levels of education. Thomas (1991) stated:

The doctrine of in loco parents provided that the college had a
right to step into the place of the student's parents (by promulgating
and enforcing academic and non-academic codes of conduct) and a
duty to protect the safety, morals, and welfare of its students.
(p.34)
In loco parents stamped its imprint on public higher education in the

United States in 1913 when Berea College forbid its students from eating at

restaurants and entering amusement houses that were not owned by the college.

This rule was challenged by a local restaurant owner, J. S. Gott, with the resulting

decision, favorable to Berea College, setting the tone for the student-educational

institution relationship for many years.

In Gott v. Berea (1913) "the court allowed the college broad power to act

in place of the students' parents, empowering the college to establish any rules,

like those which a parent might establish, to regulate the 'physical and moral

welfare and mental training of its students" (Manning, 1991, p. 12).

In loco parents became well established and served as the controlling

doctrine defining the nature of student-institution relationships for many decades

(Manning, 1991). However, a gradual process of evolution began to impact this

controlling doctrine as writers, educators, and legal scholars began to focus on the

unfairness of in loco parents.











Foremost among these writers was Warren A. Seavey, a Harvard Law

School professor. His commentary in the 1957 Harvard Law Review spotlighted

the situation.

It is shocking that the officials of a state educational institution,
which can function properly only if our freedoms are preserved,
should not understand the elementary principles of fair play. It is
equally shocking to find that a court supports them in denying to a
student the protection given to a pickpocket. (p. 1407)

Since the 1960's, several factors have combined to contribute to the decline

of in loco parents as the governing doctrine. The LiPl case, the lowering of the

age of majority, and the increasing age of college students all contributed to the

waning of in loco parents. However, there is considerable disagreement as to

whether the concept of in loco parents is actually dead or alive.

Zirkel and Reichner (1980) declared in loco parents dead and contended

that the student-educational institution relationship is now governed by contractual

and constitutional theories. As they stated, "the courts have made clear that in

loco parents was no longer tenable in either private or public institutions of higher

education" (Zirkel & Reichner, 1986, p. 281).

Szablewicz and Gibbs (1987) and Thomas (1991) disagreed and claimed

that in loco parents is not dead. These authors made a case that since the 1980's

the student-educational institution relationship began to change concerning in loco

parents yet again, claiming it still exists in concept. This change is predicated on

court decisions that found that a "special relationship" exists between students and

institutions in cases heard involving negligence and personal injury. As Thomas

(1991) stated, "Colleges and universities must now walk that fine line between











providing too much and too little regulation and protection. In each case, the

institutions risk exposure to liability" (p. 39).

As in loco parents is reassessed, and as its influence ebbs and flows, it

nevertheless remains a powerful force in defining and understanding the student-

educational institution relationship. In loco parents is covered in further detail in

Chapter 2.

Contract Theory

Confusion over in loco parents is compounded by the advocacy of several

alternative theories aimed at guiding the college student-institution relationship.

Writers supporting contract theory, constitutional doctrine, academic abstention,

the theory of privilege, student consumerism, and the fiduciary theory have all

attempted to define the student-educational institution relationship. However,

foremost among these current theories is the contract theory. This theory also

lends support to the current study.

Hendrickson and Gibbs state, "colleges no longer are parental stand-ins,

subject to the protection that that special status implies; they are now more like

commercial enterprises offering contractual services" (Hendrickson & Gibbs, 1986,

p. xiii).

Bean and Hines (1981) claim, "the student-college relationship assumes

that students and colleges are partners to a contract, each giving and receiving to

fulfill the terms of the contract" (p. 37). Further, Lerblance (1979) writes, "Under

this theory, the student and the university have agreed to certain terms which limit

the rights of students and result in the imposition of sanctions when violated"

(p. 607).











Nordin (1982) observed that "a close examination of the body of decisions

the courts have handed down on students' rights suggests that a coherent theory is

not only possible, but necessary. It is the contract theory of students' rights"

(p. 142).

An opinion handed down by the courts in 1975 is illustrative of the judicial

tug of war within the court system. In Slaughter v. Brigham Young University

(1975), the Tenth Circuit said:

It is apparent that some elements of the law of contracts are used
and should be used in the analysis of the relationship between the
plaintiff and the university to provide some framework into which
to put the problem of expulsion for disciplinary reasons. This does
not mean that "contract law" must be rigidly applied in all its
aspects, nor is it so applied even when the contract analogy is
extensively adopted. The student-university relationship is unique,
and it should not be and cannot be stuffed into one doctrinal
category." (p. 676)

Perhaps the best utility for the contract theory to define the student-

educational institution relationship is to not adhere it to a commercially binding

contract. Nordin (1982) advocates an implied or quasi-contractual relationship

which arises by operation of the law and which is considerably more flexible in its

definition. She concludes that the "use of implied or quasi-contract theory may be

one way in which to develop a theoretical framework for solving disputes between

students and universities" (p. 180).

The references reflect a wide range of potential theories to guide the

student-higher education institution relationship and a wide range of disagreements

over their use. As law is ever evolving, new student-institutional relationships

have emerged. The relationship between the student and the institution is











multifaceted and tends to take on the characteristics of more than one theory.

However, contract theory is the prevailing and most popular theory used to

describe the student-educational relationship in the 1990's. In loco parents,
fiduciary theory, the theory of privilege, and constitutional theory are further

reviewed in Chapter 2. Contract theory and the doctrine of in loco parents are the

basis for the study and clearly provide the underlying constructs and postulates on

which this thesis is based.

Methodology

In this study the researcher examined 10 research questions that addressed

the judicial officer's perceptions, current practices, opinions, and level of

knowledge, with regard to the rights of students in disciplinary proceedings in

public higher education institutions. These questions were expanded by examining

whether a relationship existed between institutional characteristics and personal

characteristics of judicial officers, with regard to the rights of students in

disciplinary proceedings in public higher education institutions. In addition,

questions examining the student-educational institution relationship, as well as

influences on student judicial systems within the last decade and the

recommendations of judicial officers for future practice, were included.

The independent variables included the institutional characteristics and the

personal characteristics of the judicial officers. Dependent variables in this study

were (a) what judicial officers perceive are the rights of students in disciplinary

proceedings; (b) the current practices of judicial officers with regard to student
rights in disciplinary cases; (c) the opinions of judicial officers toward existing











judicial systems; and (d) the level of knowledge and understanding of judicial

officers of existing law with regard to student rights in disciplinary cases.

The Judicial Officers Survey was developed by the researcher from several

related instruments and piloted to maximize construct validity. The survey was

distributed to a total population of 1,568 public four and two-year institutions. In

addition, the survey was endorsed and sponsored by the Association of Student

Judicial Affairs in order to maximize the return rate of the Judicial Officers Survey.

The survey consisted of six sections that provided for yes or no responses,

rankings, correct or incorrect choices, Liken Scale response options and an open-

ended question. The data obtained from the survey were analyzed with

descriptive, regression, analysis of variance, and qualitative analysis of the open-

ended question.

Definition of Terms

The following terms were used throughout this study:

Cllge, Institution of Higher Education, and University are used
interchangeably referring to a publicly-chartered, degree-granting educational

institution above the secondary level.

Constitutional Relationship, as used in this study, refers to a relationship

applied to students enrolled in public institutions incorporating the Fourteenth

Amendment's due process and equal protection clauses.

Contract Theory refers to a relationship in which a contract is "a promise

which the law recognizes as creating a legal obligation of performance" (Frascona,











1984, p.12). Additionally, it is an assumption that after student acceptance and

registration, there is a contract between the student and the university.

Fiduciary Th ey as discussed in this dissertation, refers to a relationship

where there is special confidence reposed in one, who in equity and good

conscience, is bound to act in good faith with due regard to the interests of the one

reposing the confidence (Black, 1979).

In Loco Parentis is defined in Black's Law Dictionary as "in the place of a

parent; instead of a parent; charge factitiously, with the parent's rights, duties, and

responsibilities" (p. 708).

Judicial Officer refers to the chief administrator who has the responsibility

of supervision, coordination, interpretation, and implementation of the student

discipline system and process in institutions of higher education.

Organization of the Remainder of the Study

Chapter 2 contains a review of the literature relevant to the study. In the

third chapter the researcher focuses on methodology, description of the survey

instrument, research procedures, and description of the data analysis. Chapter 3

also presents an overview of the study, research questions, and the independent

and dependent variables. In addition the population, sample, procedures, pilot

study, and data analysis are discussed. Chapter 4 contains the results of the data

analysis. In the final chapter the researcher applied the results of the data analysis

to the research questions. Additionally, the final chapter includes a discussion of

the results, the limitations and implications of the study, as well as

recommendations for further study.













CHAPTER 2
REVIEW OF RELATED LITERATURE


The review of the literature concerning student rights and the student-

educational institution relationship provided the background for this study. This

chapter focused on three areas: historical perspective of the relationship between

the student and the educational institution, judicial systems and student conduct

codes, and the implications and standards, influenced by the courts, on student

affairs.

The In Loco Parentis Doctrine
The doctrine of in loco parents has been employed by the courts,

institutions, students and parents to define the student-educational institution

relationship. This doctrine achieved early recognition in American higher

education dating back to its first formal judicial enunciation in Gott v. Berea

college in 1913. The in loco parents doctrine governed until the 1960's when

several court cases, the lowering of the age of majority, and students' rebellion

against their own parents contributed to its decline and perhaps demise. However,

several scholars assert that in loco parents is not dead and that at the behest of

students and parents, a new in loco parents relationship is developing in the

1990's.

The application of in loco parents to education was acknowledged in 1770

in Sir William Blackstone's compilation of English Law.












The father may also delegate part of his parental authority to the
tutor or schoolmaster of his child; who is then in loco parents, and
has such portion of the power of the parent committed to his
charge, viz. that of restraint and correction, as may be necessary to
answer the purposes for which he is employed. (p.413)

The history of in loco parents, which literally means "in the place of a

parent," in American higher education can be traced to Cambridge where it was

accorded early recognition in the common law. Professor Henry Steele

Commonger has observed:

[In loco parents] was transferred from Cambridge to America, and
caught on here even more strongly for very elemental reasons:
College students were, for the most part, very young. A great
many boys went to college in the colonial era at the ages 13, 14,
and 15. They were, for the most practical purposes, what our high
school youngsters are now. They did need taking care, and the
tutors were in loco parents. (Van Alystyne, 1969, p.407)

The doctrine of in loco parents was utilized in case law in England in 1860

in a case titled Regina v. Hoplev (1860). In this case, after securing parental

permission for corporal punishment, the teacher beat the student to death. In loco

parents was entered as a defense, but the manslaughter verdict against the teacher

was upheld. While United States courts have not faced the doctrine of in loco

parents in manslaughter cases, the colleges in the United States have taken full

advantage of the omnipotent power they found from in loco parents.

People ex rel. Pratt v. Wheaton College (1866) was the first case where a

college's use of the doctrine of in loco parents was legally sanctioned. In Pegpk

v. Wheaton the court refused to strike down a college regulation prohibiting

students from joining secret societies. The court stated:











A discretionary power had been given (college authorities) to
regulate the discipline of their college in such a manner as they
deem proper; and, so long as their rules violate neither divine nor
human law, we have no more authority to interfere than we have to
control the domestic discipline of a father in his family. (p.187)

The court delivered a more clear-cut application of the specific judicial

sanction of in loco parents in 1913. The Kentucky Court of Appeals articulated

the institution's right to limit student conduct as if the institution was the parent in

Gott v. Berea College (1913).

In this case J. S. Gott, a restaurant owner in the town of Berea, brought an

action against the college seeking to prevent the enforcement of a rule that forbid

college students to eat at any place not owned by the college. Several students

had been dismissed by the college for violating the rule forbidding them from

entering local eating houses or places of amusement. In holding in favor of Berea

College the court stated:

College authorities stand in loco parents concerning the physical
and moral welfare and mental training of the pupils, and we are
unable to see why, to that end, they may not make any rule or
regulation for the government or betterment of their pupils that a
parent could for the same purpose. Whether the rules or
regulations are wise or their aims worthy is a matter left solely to
the discretion of the authorities or parents. .and, in the exercise of
that discretion, the courts are not despised to interfere, unless the
rules and aims are unlawful or against public policy. (p.206)

In the case of John B. Stetson University v. Hunt (1924), the relationship

between a student and college was further defined. In Stetson v. Hunt the

University expelled a student, who then brought suit claiming she had been

maliciously expelled. The court upheld the University's ability to expel the student,











employing the exact language of the Gott decision. The court went even further

by saying that "every presumption must be indulged in favor of the school

authorities to the extent that they acted in good faith, for the best interests of the

school and the pupil" (p. 638).

Prior to World War II courts intervened a number of times, finding for the

institutions' authority to impose disciplinary rules upon students. In People ex rel.

Goldenkoff v. Albany Law School (1921), the dismissal of a law student in his final

year for allegedly spreading socialistic and seditious propaganda was upheld. In

1924 in the case of Tanton v. McKenney (1924), the courts upheld a decision to

dismiss a female student who smoked cigarettes in public and rode on public

streets in a car seated on the lap of a male. Furthermore, in Robinson v. University

of Miami (1958), a student was deemed to be properly dismissed when this student

wrote a letter to a local newspaper on the subject of atheism.

However, to completely understand the breadth and power of in loco

parents, it must be noted that in addition to upholding the right of institutions to

govern student conduct, the court also imposed liability upon institutions for

failing to monitor or control student behaviors. Along with the parental authority

granted by the courts with the doctrine of in loco parents came an obligation to

protect. The courts have stated that colleges stand in loco parents concerning not

only morals, but also physical safety.

Courts have held colleges and universities liable for injuries sustained by

students. In Barr v. Brooklyn Children's Aid Society (1921), the court stated, "a

college or university is liable to an injured student for the negligence of its

servants" (p.297). Furthermore, in Brigham Young University v. Lillywhite











(1941), the university was found liable for injuries sustained by a student during a

chemistry lab explosion that occurred while the instructor was out of the room.

The marriage of institutional liability and the scope of students' rights is the

heart and soul of in loco parents in higher education. Liability and student rights

have peaked and ebbed as in loco parents has risen and fallen and risen again.

Healy v. James (1972) and Bradshaw v. Rawlings (1979) are two landmark cases

that dramatize the courts' interpretations of in loco parents, student rights, and

institutional liability. Furthermore, it is on the issue of institutional liability that the

doctrine of in loco parents has been resurrected in the 1990's.

The traditional judicial view of the student-educational institution

relationship is founded in the in loco parents doctrine. Under this doctrine

institutions have a duty to protect the safety, morals, and welfare of their students

in much the same way as parents protect their children. "Courts have enforced this

duty by holding colleges liable for its breach and giving administrations broad

power to supersede any individual freedom the student may have wanted to

exercise" (Szablewicz & Gibbs, 1987, p. 454). However, traditional views were

challenged and in loco parents waned as the governing doctrine in the 1960's.

The Decline of In Loco Parentis

The doctrine of in loco parents permits colleges to devise, implement and

administer student discipline and to guide and foster the physical and moral welfare

of students (Stamatakos, 1990). However, the courts have changed direction

several times and have uniformly failed to consistently provide and define a

coherent model of the student-educational institution relationship.











The first rejection of an attempt by a college to justify a discipline against a

student occurred over 100 years ago in Commonwealth ex rel. Hill v. McCauly

(1887). In Hill v. McCauly a student was dismissed for allegedly participating in

riotous conduct The student challenged the dismissal and the court ruled it invalid

because the college deprived the student of any voice in the affair. The college

fought back claiming that it possessed the power of dismissal. The relationship

between student and professor was similar to that between parent and child,

suggested the college. However, the court ruled that the doctrine of in loco

parents would not stop the court from interfering with manifestly unjust actions by

a college. Therefore, the student was not without a voice and was not totally a
"child" in a "parental relationship", and the doctrine of in loco parents could not

be used as an absolute license to control the lives of students.

The student-educational institution relationship took on a new meaning

after World War II. Students demanded and received more freedom from rigorous

rules of discipline and conduct. Students who had fought for their country were

not willing to be subjected to codes of conduct that had traditionally been applied.

The age of students increased as a result of the war and the subsequent G.I. Bill.

Veterans were able to attend colleges and universities and a large population of

students now were over the age of 25.

The civil rights movement in the 1960's also contributed to students

challenging institutional disciplinary policies and actions. Intense and violent

protests occurred on campuses during the 1960's. First Amendment freedom of

speech and assembly arguments were heard by the courts and were often enforced

by the courts in favor of students. A landmark case that forever changed the











student-educational institution relationship occurred in 1961 and developed from a

student sit-in at a lunch grill.

In Dixon v. Alabama State Boards of Education (1961), six African-

American students attending Alabama State College were expelled after

participating in a protest at a segregated lunch grill. Upon an appeal, the students

won a judgment that they were entitled to a notice and hearing. The court ruled

that the due process clause of the Fourteenth Amendment afforded students due

process protection of notice and a hearing before a disciplinary action can occur.

The Vietnam War and the Twenty-sixth amendment contributed further to

the decline of the in loco parents doctrine controlling the student-educational

institution relationship. The bitter anti-war demonstrations and the resulting

attempts to control student behavior by the institutions shocked the country and

resulted in additional protest and rebellion. Students, who at age 18 were being

drafted and sent to war, insisted that if they could be sent to fight they could also

be treated like adults.

Society reluctantly accepted the new independence of students between the

ages of 18 and 21, and the Twenty-sixth Amendment to the United States

Constitution lowered the voting age to 18. Now 18-year-old students could buy

alcohol, get married, vote, and make contracts. This constitutional change forced

the courts to recognize the new independent status of the college student

(Szablewicz & Gibbs, 1987). In Heal v. James (1972), a case involving a

university's refusal to recognize a chapter of Students for a Democratic Society

(SDS), the court found a violation of First Amendment rights. Justice Douglas

stated, "Students--who, by reason of the Twentysixth Amendment, become eligible











to vote when eighteen years of age are adults who are members of the college or

university community" (p.197).

World War II, the G. I. Bill, the civil rights movement, the Vietnam War,

and the lowering of the age of majority were all key factors that contributed to the

decline of the doctrine of in loco parents. All these factors were external to the

institutions and were forced upon the institutions. The courts also were influenced

by these events, and the opinions of the courts reflected these changes in society

and the new perception of students as adults.

The first of these decisions was handed down in Goldberg v. Board of

Regents of the University of California (1967). The dispute again involved an

expulsion and occurred when students who were engaged in a peaceful

demonstration repeatedly shouted obscenities. The expulsions were upheld by the

court, but the reasoning and procedures were challenged. Expulsions were upheld

by the court as a reasonable use of governance and discipline, provided proper

procedural steps were taken. Additionally, the court rejected the use of labels or

fictions as justifications for the control of student conduct. The court said, "For

constitutional purposes, the better approach... recognizes that state universities

should no longer stand in loco parents in relation to their students" (p. 470).

Shortly after Goldberg, a district court in Buttn v. Smiley (1968) said,

"Doctrine of 'In Loco Parentis' is no longer tenable in a university community...

We do not subscribe to the notion that a citizen surrenders his civil rights upon

enrollment as a student in a university" (p.286). A short time later in Moore v.

Student Affairs Committee of Troy State University (1968), the court refused to

permit the college to base its right to dormitory search and seizure on in loco











parents. The court said, "The college does not stand, strictly speaking, in loco

parents to its students" (p. 729).
In Hill v. McCauly (1887), Lixn (1961), H1ely (1972), fgodberg.(1967),

]jugy (1968), and Moore (1968), the courts' decisions contributed to altering the

student-educational institution relationship. In loco parents was no longer

considered the governing doctrine. Students were perceived as citizens and their

status was much more independent. These decisions all concerned college

disciplinary actions including rules of conduct and student searches. However, the

courts had also stated that in loco parents imposed a duty upon institutions to

protect the physical safety of students and imposed liability upon institutions for

failure to do so. Several cases now addressed whether the courts, while

recognizing the independence of students, would still impose a duty and

responsibility on the institution for their safety and protection.

In Hegel v. Langsam (1971), parents of a 17-year-old daughter alleged the

university had "permitted" her "to become associated with criminals, to be

seduced, to become a drug user and further allowed her to be absent from her

dormitory" (p. 148). The court concluded that there is no requirement of the law

that places upon a university any duty to regulate the private lives of their students,

to control their comings and goings, and to supervise their associations.

A similar case, Baldwin v. Zoradi (1981), found in favor of the university

when a student brought action for injuries sustained in an automobile speed contest

which occurred after drinking on university premises. The court stated that the

authoritarian role of college administrators is done. Students have demanded and











received rights which have given them a new status and abrogated the role of in

loco parents of college administrators.

Further rejection of negligence claims, which previously found some

success under in loco parents, is found in the landmark case, Bradshaw v.

Drawings (1980). As a result of a car accident which occurred after a school

sponsored sophomore class picnic at which the driver became intoxicated, students

brought a negligence suit against Delaware Valley College. The court rejected the

students' claim and Judge Aldisert wrote a widely quoted opinion:

Our beginning point is a recognition that the modem American
college is not an insurer of the safety of its students. Whatever may
have been its responsibility in an earlier era, the authoritarian role of
today's college administrations has been notably diluted in recent
decades. Trustees, administrators, and faculties have been required
to yield to the expanding rights and privileges of their students...
There was a time when college administrators and faculties
assumed a role in loco parents. Students were committed to their
charge because the students were considered minors. A special
relationship was created between college and student that imposed
a duty on the college to exercise control over student conduct and,
reciprocally, gave the students certain rights of protection by the
college. The campus revolutions of the late '60s and early 70s were
a direct attack by the students on rigid controls by the colleges and
were an all-pervasive affirmative demand for more student rights.
In general, the students succeeded, peaceably and otherwise, in
acquiring a new status at colleges throughout the country. These
movements, taking place almost simultaneously with legislation and
case law lowering the age of majority, produced fundamental
changes in our society. A dramatic reapportionment of
responsibilities and social interests of general security took place.
Regulation by the college of student life on and off campus has
become limited. Adult students now demand and receive expanded
rights of privacy in their college life. (p. 138)











The Bradshaw court articulated two basic considerations that have since

provided guidance to the student-educational institution relationship: first, a

recognition "that the modern American college is not an insurer of the safety of its

students" (p. 138), and second, "society considers the modem college student as

an adult, not a child of tender years" (p. 140). Fass reflected the new era of

student-educational institution relations saying that the role of the institution is to
"assist intellectual and moral development rather than to direct it, and to advise

rather than control" (p. 34).

Zirkel and Reichner (1986), in declaring in loco parents dead, referred to a

1985 case in New York, Eiseman v. State (1985). In this case the appellate court

rejected a damages suit brought by the estate of a student who had been raped and

murdered in her dorm by a conditionally-released felon/schizophrenic who

attended the college under a special program. The court stated that when students

demanded and received expanded rights, greater freedoms and more independence

in connection with their college life, they no longer were protected by in loco

parents.

Zirkel and Reichner (1986) concluded that the college context is the only

one in which the in loco parents theory has risen and then experienced a complete

demise in our courts. Zirkel and Reichner joined Van Alstyne (1968), a long-

standing advocate of student rights who said, "It simply blinks at reality to treat the

mother and the college as one and the same in drawing legal analogies, no matter

how frequently one refers to his alma mater for other purposes" (p. 591).

The ranks of authorities in education are not in agreement that in loco

parents is dead. Many still see in loco parents as a valid concept and claim it as a











basis for "a special relationship" between colleges and students. Szablewicz and

Gibbs (1987) proposed that a new in loco parents doctrine has developed at the

request of students who once rejected it. As a result, some courts have responded

to students' personal injury lawsuits by again imposing liability upon colleges and

universities. Furthermore, additional evidence of a rebirth can be found in

examining revised codes of conduct that reflect a dramatic turn from the flexibility

and freedom for students found in the 1960's.

The New In Loco Parentis

James Szablewicz and Annette Gibbs (1987), who have vast experience

and extensive publications in the area of post-secondary school law, claimed that

the doctrine of in loco parents may not be quite so dead.

A trend is clearly emerging from the courts which suggest a rebirth
(with revision) of the doctrine. An even stronger trend in plaintiff
claims suggests that students are asking for this doctrine which they
once rejected. Many courts have responded to the onslaught of
students' personal injury lawsuits by imposing liability upon colleges
and universities, often in extraordinary circumstances. This new
liability is recognizable as a return to the old in loco parentis...
What distinguishes the in loco parents of the 1980's is that it is
limited to protection of student safety. Missing is the once
complimentary power of colleges to police and control student's
morals this having long been barred by constitutional civil right
protections. (p. 465)

Students increasingly have brought negligence suits and essentially have

asked the courts to make the college their guardian and protector. Several courts

in several jurisdictions have responded to these claims and have held colleges

responsible for injuries to students.











Relvea v. State (1980) demonstrates the change in students' attitudes when

the plaintiff student claimed that the college had a mandatory, nondiscriminatory

duty to provide reasonable security for all persons lawfully on campus. The court

held for the institution in this case, but in several succeeding cases the courts found

for the student. Thomas (1991) stated:

Institutions may nonetheless be held accountable for and to students
under theories of tort law (negligence claims) based either on a
"special relationship" between the parties, or based on the voluntary
assumption of responsibility by one party; contract law; and "social-
host" law.

In a case similar to Relvea v. State, a Massachusetts court found for the

student. In Mullins v. Pine Manor College (1983), a student was severely attacked

on the college grounds by a nonstudent assailant and brought a negligence claim

against the school for her injuries. The Massachusetts Supreme Court refused to

specifically reinstate the in loco parents doctrine, but held the college libel. The

court stated:

Of course, changes in college life, reflected in the general decline of
the theory that a college stands in loco parents to its students,
arguably cut against this view (plaintiffs claim that the school owed
her duty of protection). The fact that a college need not police the
morals of its resident students, however, does not entitle it to
abandon any effort to ensure their physical safety. Parents,
students, and the general community still have a reasonable
expectation, fostered in part by colleges themselves, that reasonable
care will be exercised to protect resident students from foreseeable
harm. (p. 335-336)

The key element in this decision is the fact that the court recognized the

student's right to rely on the college's duty to protect. This theme, which is found











in the in loco parents doctrine, is applied by the courts without citing in loco

parents but through tort law, contract law, and "social-host" law.

In a California case, Peterson v. San Francisco Community College (1984),

the court held the college liable for a sexual attack upon a student that took place

in the college parking lot. The court relied on several principles including general

landowner-premises liability and the principle that the college has a duty to provide

safe premises through the exercise of due care.

A Colorado case, Whitlock v. University of Denver (1985), is perhaps the

most extreme college liability case of the 1980's and 90's. The university was

found liable for injuries sustained by an intoxicated student during a trampoline

accident at a school fraternity. The initial jury trial resulted in a $5.25 million

verdict in favor of the student. However, the Colorado Supreme Court overturned

the finding of the lower court and concluded that because the university exercised

little control over the fraternity house, no special relationship was established.

Without a special relationship there could be no liability. Therefore, when colleges

and universities exercise control they may be creating a special relationship and

assume obligations to protect that they otherwise would not.

There are numerous examples found in recent trends that indicate a number

of colleges and universities tightening restrictions on students' private lives. The

new codes of conduct may be viewed as institutional control, therefore exposing

the institution to a duty to protect similar to the in loco parents doctrine. New

residence hall policies, regulations on alcohol consumption, student conservatism,

increased campus crime, and increases in incidents of racial, gender, and religious

intolerance have prompted administrators to revise student policies that impact the











personal freedoms of students and resemble a return to the old in loco parents

doctrine (Thomas, 1991).

Students, parents, the public, government and the courts are now calling

for colleges and universities to be held accountable for the conduct of their

students. They are insisting that institutions monitor fraternities, work to eliminate

drug and alcohol abuse, prevent crime by third-party intruders on campus, and

provide a safe and secure campus (Thomas, 1991). If courts are going to hold

institutions responsible for injuries, it is reasonable that they will be sympathetic to

the complementary power to control student morals and conduct. Institutions are

now in the difficult position of providing either too much or too little recognition

and protection as a result of the courts' unwillingness to define completely the

student-educational institution relationship.

William Beaney (1968) wrote, "the effort to formulate a general principle

underlying student-institutional relations may have great significance in shaping the

attitudes of institutional officers on students and, more importantly, will tend to

influence the style and process of actual governance" (p. 515). The continuing zig-

zagging by the courts and the lack of a clear, consistent approach to guide judicial

officers hampers and creates inconsistency in the higher education disciplinary

process.

Contract Theory

The common law of contract was applied to the student-educational

institution relationship as a complementary model to in loco parents toward the

end of the nineteenth century (Van Alstyne, 1969). Contract theory has evolved











through this century and now stands, with the decline of in loco parents, as an

independent legal model widely cited as the controlling theory today.

Nordin (1982) called contract theory the best theory for governing the

student-educational institution relationship and the most likely theory to emerge

dominant. She further claimed that upon a close examination of the body of

decisions handed down on students' rights, contract theory was the theory cited by

the courts in a wide range of student rights cases. Nordin (1982) stated that a

coherent control theory is not only possible, but necessary, to guide the courts in

student rights cases.
A unique case, People ex rel. Cecil v. Bellevue Hospital Medical College

(1981), was one of the earliest American education contract cases. In this case the

New York State Supreme Court referred to a student's "contract between the

college and himself' (p. 490), which provided that compliance with terms

prescribed by the college would result in the award of a degree. Belleue involved

the seemingly arbitrary denial of a degree to a medical student who had satisfied all

requirements for graduation. The court decided against the school, which had

claimed the right to refuse to grant a degree without stating a reason. The school

never offered any plausible reason for dismissal and this case remains as one of the

very few in which a school has refused to put forth any reason for its decision.

An additional early case, Koblitz v. Western Reserve University (1901),

is also referred to as one of the earliest cases applying contract theory to the

student-educational institution relationship. The court stated, "Contract terms are

an agreement by the student to submit to the school's reasonable discipline and by











the university to impart... instructions ... and not impose unfair penalties ...

deal with him impartially" (Koblitz, 1901,p. 153).

The early cases that capitalized on contract principles involved private

institutions and were decidedly in favor of the institution. The Florida Supreme

Court in Stetson v. Hunt (1925), in upholding an expulsion, stated:

The relation between a student and an institution of learning ... is
solely contractual in character and there is an implied condition that
the student knows and will conform to the rules and regulations of
the institution, and for breach of which he may be suspended or
expelled. (p. 517)

In Anthony v. Syracuse University (1928) the New York Court of Appeals

noted:

Under ordinary circumstances a person matriculating at a university
establishes a contractual relationship under which, upon compliance
with all reasonable regulations as to scholastic standing, attendance,
deportment, payment of tuition, and otherwise, he is entitled to
pursue his selected course to completion. (p. 438)

This opinion upheld Syracuse University's decision to dismiss a student for

being a troublemaker in her sorority house and not behaving like a "typical

Syracuse girl." Ironically, she had fought the dismissal on the grounds that she had

a contract with the university that entitled her to finish her degree after completing

academic requirements and meeting disciplinary standards. However, her

registration, which she signed, reserved to the university the right to withdraw any

student at any time, for any reason.











Implied Contract Theory

Courts have found contract law useful to review claims made by student

litigants but the courts have traditionally manipulated contract law to put a heavy

burden on the student. "Courts traditionally have ruled that the actions of colleges

and universities are to be deferred to" (Dodd, 1985, p. 710). When problems

develop between students and institutions, courts have consistently applied the

contract theory and treated postsecondary institutions in a deferential manner

(Kaplin, 1985). Kaplin further writes that courts have given institutions

considerable latitude to select, interpret, and change their contract terms to which

students are subjected as they progress through the institution.

Carr v. St. John's University (1962) is considered as the defining case of

modem contract theory of student status. The court upheld St. John's dismissal of

four students for having participated in a civil marriage ceremony and stated,
"when a student is duly admitted by a private university, secular or religious, there

is an implied contract between the student and the university that, if he complies

with the terms prescribed by the university, he will obtain the degree which he

sought" (p. 632). The harsh and vague regulation that was upheld by the court

read that "in conformity with the ideals of Christian education and conduct, the

university reserves the right to dismiss a student at any time on whatever grounds

the university judges advisable" (Kaplin, 1985, p. 294).

The implied contract, cited in Cag, is significant and was affirmed in a case

involving a public institution, Healy v. Larson (1971). "When an express or

implied contract is reached, then courts will enforce the institution's contractual

obligations to the students and award legal redress if damages can be











demonstrated" (Weeks, 1979, p. 1). "The student-university contract is obviously

not one in which parties negotiated an agreement" (Nordin, 1982, p. 152), which

would be considered an "express contract". The type of contract used to define

educational relationships is an implied or quasi-contract. Black's Law Dictionary

defines quasi-contract "as a relationship arising out of transactions between the

parties which gives them mutual rights or obligations but does not involve a

specific and expressed convention or agreement between them" (p. 396).

Steinberg v. Chicago Medical School (1976) is one of the few cases to find

a binding contract between student and institution and focused on a university that

acted far outside of the realm of acceptable behavior. In Steinbeg an applicant

had been rejected and brought a class action alleging that the school had used

unstated criteria, namely the willingness of applicants' families to make large

donations, as an admission criteria. The student's argument prevailed with the

following reasoning: that the catalogue criteria "constituted an invitation for an

offer to have... credentials appraised under the terms described by defendant, and

that defendant's voluntary reception of the application and fee constituted an

acceptance, the final act necessary for the creation of a binding contract" (p. 329).

Slaughter v. Brigham Young University (1975) demonstrated the variety of

interpretations and reasoning captured in the application of contract law. In this

case the plaintiff student had been awarded $88,283 in damages in the trial court in

a suit alleging erroneous dismissal from school. The trial court had found for the

student using commercial contract theory, but the appellate court reversed the

decision, finding that strict use of contract law was not appropriate in the student-

university context. The Tenth Circuit said:










It is apparent that some elements of the law of contracts are used
and should be used in the analysis of the relationship between
plaintiff and the University to provide some framework into which
to put the problem of expulsion for disciplinary reasons. This does
not mean that 'contract law' must be rigidly applied in all its aspects,
nor is it so applied even when the contract analogy is extensively
adopted... .The student-university relationship is unique, and it
should not be and cannot be stuffed into one doctrinal category....
There are also many cases which refer to a contractual relationship
existing between the student and the university.... But again these
cases do not adopt all commercial contract law by their use of
certain elements. (p. 676)

This widely-quoted opinion succinctly sums up the balance that courts

strive to attain and the uniqueness of the student-educational institution

relationship. In spite of the generally deferential attitude of the courts toward

institutions, it is apparent that contract theory creates a two-way street and has

become a source of meaningful rights for students and for institutions (Kaplin,

1985).

The Contract to Educate

The educational contract is comprised of a number of documents and oral

assertions between the student and institution. The totality of the contract refers

to the overall mutual obligations of the student and institution and has evolved, but

is still developing. Kaplin (1985) writes that there is debate on several contract

issues such as the means for identifying the terms and conditions of the student-

institution contract, the extent to which the school catalog constitutes part of the

contract, and the degree to which the institution retains implied or inherent

authority. While earlier cases tended to only define the student's role in











conforming to disciplinary codes, more recent cases have defined the institution's

obligations as well.

An early case that established accountability on the part of the institution is
Ross v. Pennsylvania State University (1978). In Ros a graduate student was

dismissed for not maintaining a grade point average high enough to graduate. The

court held for the student pointing out that since the institution stated the grade

point average is necessary for graduation and not for continued enrollment, the

student had a property right to his continued education. The Ros court extended

the standard to public institutions that Pennsylvania courts had applied to private

schools stating:

A student has a reasonable expectation based on statements of
policy by Penn State and the experience of former students that if
he performs the required work in a satisfactory manner and pays his
fees he will receive the degree he seeks. (p. 147)

Two additional cases that reflect institutional accountability as determined
by the courts are Heal v. Larsson (1971) and Eden v. Board of Trustees of the

State University of New York (1973). In IHal~ the student had taken all the

courses his guidance counselors specified but was denied a degree. "The court

held that he was contractually entitled to a degree because he had satisfactorily

completed a course of study at... [the] community college as prescribed to him

by authorized representatives of the college" (Kaplin, 1985, p. 227).

In Eden students who had been accepted to a new school of podiatry being

opened at Stony Book sued when the state did not open the school. The court

found for the students, ruling that this action was arbitrary and capricious and a











breach of contract. This case established that a prospective student has a contract

with a school once the school accepts the student for admission (Kaplin, 1985).

One of the fullest statements that outlines the overall contract to educate is

found in Lowenthal v. Vanderbilt University (1977). In Lowenthal eight graduate

students filed a breach of contract suit against the university because of the

disintegration of the Graduate School of Management The court stated that "the

total collapse of the doctoral program .constitutes a breach of contract by

Vanderbilt" (Lowenthal, 1977, p. 13). The court asserted further:

Unquestionably, the relationship between a student and a university
is contractual in nature. Courts have repeatedly held that a contract
exists which imposes rights and duties on each of the parties...
Determining the precise terms of the contract is difficult Its
content is derived from the written and oral representations made
by each party and from other somewhat amorphous implied terms.
The school's catalog, the guidelines for doctoral study, and oral
representations made by the faculty each helped to define
Vanderbilt's duty to GSM doctoral students, but by no means
limited it. (p. 14)

Nordin (1982) points to "the failure of the institution to provide

opportunity to students to complete proffered programs [as] one of the clearest

emerging concepts of a breach of a university's contractual obligations" (p. 82).

Additionally, the Lowentha court as a part of its concluding statement

reprimanded the University:

Vanderbilt has argued that a finding that it breached its contract
with the students will have dire consequences for it and higher
education generally. To the contrary, should this court ignore the
obvious failure of Vanderbilt to live up to its contractual obligations
to these students, it would be a signal to Vanderbilt and other
institutions that they are immune from the same legal principles










which govern other relationships in our society. While the
university-student relationship is indeed unique, it does not vest a
university with unlimited power to do or not to do as it pleases
without facing the consequences. (p. 40)

The Lowenthal court notes correctly that the student-university

relationship is fundamentally a major power imbalance, one of the most imbalanced

situations left in society (Nordin, 1982). In examining the contract between

students and institutions Dodd (1985) cited the essential unfairness of the student-

university contractual relationship. The adhesion-like quality of the contract can

be far more onerous to students. The principles of adhesion and unconscious

ability are reflected in a "cloutless consumer who must accept the oppressive terms

put forth by the behemoth seller or forgo the purchase" (Dodd, p. 714). However,

the concept of a "contract to educate" rests upon the "reasonable expectations of

the parties," as opposed to a student consumer forced into an oppressive

educational contract The terms of the implied contract to educate can usually be

found in the student handbook, registration cards, oral statements of the faculty,

rules of the faculty senate, representations made by guidance counselors, and the

college's usual disciplinary procedures (Nordin, 1982).

Nordin (1982) traced the evolution of the educational contract from a time

of simple duties that expected students to pay tuition, show academic progress,

and maintain acceptable conduct. Colleges were expected to act in good faith,

impart knowledge and award degrees for completion of academic requirements.

The contract to educate has now evolved to place accountability and expectations

upon institutions that include providing an atmosphere conducive to learning, using

fair disciplinary procedures, and providing the promised curriculum.











The dominant concept found in court decisions places the relationship

between students and institutions as an implied or quasi-contractual one. The

implied contract is more flexible in definition and provides a general framework for

describing the very complex, unique student-educational institution relationship.

Nordin (1982) identified several advantages to the educational contract

theory for all the parties and for defining the student-educational institution

relationship. First, she believes the theory allows the university maximum control

of the relationship on a continuing basis and allows it to modify rules and

procedures while still providing accountability to students. Second, the theory

allows for development of student rights while maintaining institutional autonomy.

Third, contract theory utilizes legal concepts and provides precedents familiar to

courts. Fourth, the theory reflects "the contemporary consumer concerns for

mutuality of obligation" (p. 179). Fifth, the theory provides a clear theoretical

framework utilizing legal and academic precedent. Finally, the adoption of the

contract theory allows a uniform legal standard in both private and public

institutions, providing for consistent and realistic development of academic law.

Nordin (1982) invited the academic community and the courts to look

away from the ties of the past "in order to develop a fair, full description of the

mutual obligation of student and university. The court and the universities

together must develop that theory and its application" (p. 181). Fowler (1984)

also challenges the student-educational institution writing, "Surely, we must have

greater expectations of our institutions of higher education than to have them

merely attempt to relate to their students according to a meticulously observed but

essentially adversarial due process standard" (p. 414).














In addition to contract theory and the doctrine of in loco parents, other

theories or doctrines have been advanced to describe the student-educational

institution relationship. The fiduciary theory reflects several of the components of

in loco parents, and is closely related to contract theory. Fiduciary theory is now

being considered in cases alleging educational malpractice.

A fiduciary relationship:

... exists when there is special confidence reposed in one who in
equity and good conscience is bound to act in good faith with due
regard to the interests of the one reposing the confidence. (Black,
1979, p. 753)

The fiduciary concept includes the ability to carry out the reasonable

expectations of the parties and is characterized by "confidence" existing between

two parties. In a fiduciary relationship one party places trust and confidence in the

integrity of the other. Furthermore, a fiduciary assumes a duty to act with a

sensitive conscience, respecting the highest standards, and to conduct affairs with

great honor (Goldman, 1966).

There are several relationships analogous to the student-teacher

relationship that involve characteristics defining a fiduciary relationship. Doctor-

patient, attorney-client, guardian-ward, and husband-wife all contain

characteristics such as confidence, confidentiality and dominating relation.

Educators have a similar relationship in which trust is placed in the institution and

its staff to provide instructors and educational opportunities that will improve

students' lives (Hendrickson & Gibbs, 1986). The student places great confidence











in the integrity of administrators and teachers to provide intellectual development

and expand students' mental horizons.

Warren Seavey (1957), in his infamous commentary on students' having

less rights than pickpockets, espoused that "these same professors, as careful in

protecting the interests of their fellows, are in fact fiduciaries for their students and

should be the first to afford to their students every protection" (p. 1407). Since

schools are designed for the education of their students, it follows that professors

and administrators act in a fiduciary capacity toward students (Seavey, 1957).

Goldman (1966) was a leading proponent of the fiduciary theory to govern

the student-educational institution relationship. He denounced contract theory,

claiming that the law of contracts is inappropriate for deciding disputes between

students and institutions. Furthermore, contracts were designed to structure hard

bargains between self-interested parties that are of comparable status, not student-

university status. Goldman attempted to hold institutions to a higher standard. He

maintained that the category of law governing the conduct of relationships

requiring the finest sense of ethical behavior is fiduciary. In the Restatement of

AgmcY, Seond, a fiduciary is defined as "a person having a duty, created by his

undertaking, to act primarily for the benefit of another in matters connected with

his undertakings" (cited in Goldman, 1966). Goldman believed that all the
elements of a fiduciary relationship are present in the student-educational

institution relationship.

Another characteristic that supports the fiduciary theory, is the existence of

licensing procedures (Hendrickson & Gibbs, 1986). In higher education the state

licensing procedures and national accreditations, which are designed to protect the











public from fraudulent institutions, are similar to other professions where a

fiduciary relationship is present

Goldman (1966) concluded that the nature of a university, according to

fiduciary theory, is to hold in trust its relations and to be dedicated to the student's

education and growth. Disciplinary action must be "imposed in a manner

consistent with scholarly integrity and fair process. In addition, as a fiduciary, the

university ought to afford the student every opportunity and means of

rehabilitation" (Goldman, 1966, p. 674).

Despite the fiduciary theory's logical benefits, it has been poorly accepted

and has not received judicial approval. Several factors have contributed to the
failure of this theory to gain momentum, but the concept and contradiction of

deference by the courts to higher education institutions are both primary reasons

for nonacceptance, as well as justification that a fiduciary relationship exists.

Goldman's (1966) great hope that courts will decide student-university conflicts in

a "manner consistent with the university's role as an exemplar of open-mindedness

and a sanctuary of liberty" (p. 682) remains only a hope.

Privilege Theory

University education has progressed from a privilege held only for a few

into a necessity demanded by many. As a result, the issue of whether higher

education is considered a right or a privilege has been fairly settled. However, it is

important to examine the background and evolution of privilege theory to develop

the student-educational institution framework and the role the Constitution now

plays in higher education student discipline.











Until 1961 federal courts held a position of nonintervention regarding

student rights and considered them a privilege bestowed by the state. In Hamilton

v. Regents of the University of California (1934) the United States Supreme Court

ruled that religious conscientious objectors have no federal recourse against a

university's mandatory ROTC policy. This ruling specified that higher education is
a privilege not protected by the Fourteenth Amendment and precluded the federal

judiciary from defending student interests, leaving the state the sole judge.

The privilege concept complemented the educational traditions and norms

of 1934. However, the onslaught of civil rights cases, beginning with Brown v.

Board of Education of Toneka (1954) and furthered by Dion (1961), convinced

the federal courts that the dramatic transformation occurring in higher education

rendered the privilege concept unacceptable.

Brown (1954), a landmark case in civil rights education, established two

major principles. First, that "it is doubtful that any child may reasonably be

expected to succeed in life if he is denied the opportunity of an education"

(p. 483). Secondly, the court stated that when a state agrees to provide education

"it is a right which must be made available to all on equal terms" (p. 484). The

Dixon decision, which expanded Brown to higher education, established "the right
to remain at a public institution of higher learning" (p. 371), as well as provided

procedural due process protection to students in disciplinary actions.

Increased state participation in higher education, desegregation rulings,
teacher dismissal suits, burgeoning enrollments and society's demands for a college

degree all contributed to the decline of the privilege theory and the court's decision

to become more involved in the protection of student interests. The exact role and











standards that courts and higher education institutions will follow have failed to be

established. However, some fundamental constitutional principles, plus procedural

and substantive standards for public institutions to observe, have been adopted.

The Constitutional Theory

The constitutional relationship has been applied to students by courts and

commentators and is receiving attention in literature on students in higher

education. Prior to 1961 the constitutional relationship did not exist in the minds

of the courts with regard to institutions of higher education. However, Dion

(1961) reversed past precedent and brought the Constitution, namely the

Fourteenth Amendment, to the campus.

As late as 1959 in Steier v. New York State Education Commission

(1959), a federal court affirmed the doctrine of in loco parents as controlling the
student-educational institution relationship. In this case a student was denied due

process and the right to freedom of speech and press. The court said that

attendance at a public institution is a privilege, not a right, and the privilege is

granted and controlled by the state (Hendrickson & Gibbs, 1986). A short two

years later this decision and years of past decisions were reversed in the watershed
Dion decision.

The Qian case began with the expulsion of several black students, who

had participated in a sit-in at a lunch counter in Montgomery, from Alabama State

University. The federal court of appeals reached back and revived a statute that

dated from Reconstruction to reverse the lower court and order the reinstatement

of the students (Van Alstyne, 1969). The court ruled that the Fourteenth











Amendment's due process and equal protection clauses protected the students

from dismissal without written specification of charges or a hearing. As a result,

states (public institutions) must give students due process when a liberty or

property interest arises before a disciplinary action affecting access to education is

taken (Hendrickson & Gibbs, 1986).

The Fourteenth Amendment has become the hammer that provides the

rights expressed in the Bill of Rights to students attending public institutions. This

key amendment, that when applied to the student-educational institution

relationship provides constitutional rights to students in public institutions, reads in

part:

No State shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.

Simultaneously, a progressing line of federal court decisions has advanced

constitutional rights of speech, association, and assembly on behalf of students

attending public institutions (Van Alstyne, 1969). However, the federal

government does not manage education, and the guarantees found in the

Constitution apply only when government involvement can be shown. Officials of

state institutions are considered "agents of the state" and as a result they are bound

to the requirements found in the Constitution. In contrast, most courts do not

view private institutions in the same manner and therefore private institutions are

not accountable to the same constitutional protection extended to students in

public institutions.











The degree to which freedoms of speech, association, procedural due

process, equal protection, privacy and other constitutional norms will be expanded

is not clear (Van Alstyne, 1969). Additionally, even though the public/private

distinction is blurring, the protections found in the Constitution are reserved

primarily for students of public institutions.

Due Process

Due process is one of the most precious and cherished of the constitutional

freedoms enjoyed by Americans. The Fifth and Fourteenth Amendments speak to

the concept of due process. The Fifth Amendment, which applies only to the

federal government, states that "no person ... shall be deprived of life, liberty, or

property, without due process of law." The Fourteenth Amendment, which applies

to the states and in 1961 was brought to the public campus, reads: ... nor shall

any state deprive any person of life, liberty, or property, without due process of

law....

However, the conclusion is that there is no absolute final definition of due

process. The question often heard is how much process is due? The courts have

not offered a precise definition of due process and approach it with a gradual

process of judicial inclusion (Young, 1973). Justice Frankfurter described due

process by saying: "It is not a technical conception with a fixed content unrelated

to time, place and circumstances... due process is not a mechanical instrument.

It is not a yardstick. It is a delicate process of adjustment." (cited in Young, 1973,

p. 9).











There is a distinction within due process between procedural due process

and substantive due process. Procedural due process addresses the methods and

procedures utilized in insuring the laws and regulations are followed and enforced.

Substantive due process goes further in that it questions whether the purpose or

the application of the regulation or law is fair, reasonable, and just (Young, 1976).

These due process principles were initially extended to students in public

institutions as a result of Dion and they have been expanded and clarified in

subsequent cases.

Students were not extended due process protection by the courts in public

higher education until 1961. The prevailing standard was that federal courts had

no jurisdiction over students attending universities. In Steier (1959) the court

stated, "Education is a field of life reserved to the individual states. The only

restriction the Federal Government imposes is that in their educational program no

state may discriminate against an individual because of race, color, or creed"

(p. 18). Furthermore, the court reiterated that a student was admitted to a college

or university "not as a matter of right but as a matter of grace after having agreed

to conform to its rules and regulations" (p. 20). However, a radical departure

occurred in 1961 when the Fifth Circuit Court of Appeals, in Dixon Alabama

State Board of Education (1961), ruled that six students who had been expelled

for misconduct were entitled to due process protections of notice and hearing

(Lerblance, 1979).

The stage had been set for the ixon decision by a blistering and eloquent

commentary written by Warren A. Seavey (1957) in the Harvard Law Review.

titled, "Dismissal of Students: Due Process." Seavey took aim at an Illinois case,











Bluett v. Board of Trustees of University of Illinois (1956), where Bluett, a

medical student, was accused of cheating and expelled. She was not told what

evidence there was against her, the identity of her accusers, nor was she allowed to

give evidence of her innocence. Seavey attacked the BluDe decision, which upheld
her expulsion by the university. He wrote:

Apparently all that the Illinois courts require in proceedings
resulting in the expulsion of a student... is that the institution's
authorities should have heard "some evidence". The student is left
with the impossible task of proving that the academic judges have
acted wantonly or corruptly without having the information from
which evidence to support his charges can be found. (p. 1406)

Seavey's final infamous solvo that is widely quoted and had a significant

influence on the Dixon court reads:

It is shocking that the officials of a state educational institution,
which can function properly only if our freedoms are preserved,
should not understand the elementary principles of fair play. It is
equally shocking to find that a court supports them in denying to a
student the protection given to a pickpocket. (p. 1407)

Dixa, occurring a few years following NBlue and Seavey's commentary, is
considered one of the most influential cases in defining the student-educational

institution relationship. It not only established the concept of procedural due

process as a legal force in student rights in public higher education, but also

furthered the decline of in loco parents. In addition, Dixon refuted the concept of

higher education as a privilege and established that public higher education

students have a property interest in their education (Manning, 1990).

The Dfin case began on February 25, 1960, when 29 African-American
students at Alabama State University entered a publicly-owned lunchroom at the











Montgomery County Courthouse in Montgomery, Alabama, and were denied

service and asked to leave. When they refused, police arrived and demonstrations

occurred. After an investigation, the State Board of Education recommended that

nine of the students be expelled and 20 placed on probation. The college

immediately carried out the recommendations without formal charges or a hearing

(Manning, 1990).

Six of the nine expelled students, supported by the NAACP, sued the state

board and the district court upheld their expulsion. However, on appeal the

question "whether due process requires notice and some opportunity for hearing

before students at a tax-supported college are expelled for misconduct" was

answered in the affirmative (Kaplin, 1985, p. 151). The court established due

process standards applying to expulsion procedures as follows:

The notice should contain a statement of the specific charges and
grounds which, if proven, would justify expulsion under the
regulations of the board of education. The nature of the hearing
should vary depending upon the circumstances of the particular
case. The case before us requires something more than an informal
interview with an administrative authority of the college. By its
nature, a charge of misconduct, as opposed to a failure to meet the
scholastic standards of the college, depends upon a collection of the
facts concerning the charged misconduct, easily colored by the
point of view of the witnesses. In such circumstances, a hearing
which gives the board or the administrative authorities of the
college an opportunity to hear both sides in considerable detail is
best suited to protect the rights of all involved. This is not to imply
that a full-dress judicial hearing, with the right to cross-examine
witnesses, is required. Such a hearing, with the attending publicity
and disturbance of college activities, might be detrimental to the
college's educational atmosphere and impractical to carry out
Nevertheless, the rudiments of an adversary proceeding may be
preserved without encroaching upon the interests of the college. In










the instant case, the student should be given the names of the
witnesses against him and an oral or written report on the facts to
which each witness testifies. He should also be given the
opportunity to present to the board, or at least to an administrative
official of the college, his own defense against the charges and to
produce either oral testimony or written affidavits of witnesses in
his behalf. If the hearing is not before the board directly, the results
and findings of the hearing should be presented in a report open to
the student's inspection. If these rudimentary elements of fair play
are followed in a case of misconduct of this particular type, we feel
that the requirements of due process of law will have been fulfilled.
(p. 158-59)

The Dion decision was widely accepted and courts at all levels have

recognized and extended the due process protections established by Dion. Dixon

has not turned the federal courts into "wet nurses or baby sitters" (p. 40) as Judge

Cameron dissented. In fact, the i=on court stated that a "full-dress judicial
hearing" (p. 159) was not necessary and that the procedures could "vary depending

upon the circumstances of the particular case" (p. 158) (Lerblance, 1979).

Esteban v. Central Missouri State College (1967) builds upon Di=n by

establishing that procedural due process must be provided and stating the

requirements for procedural fairness. Kaplin (1985) cites Esteban as "probably the

case that has set forth due process requirements in greatest detail" and "for the

internal guidance of an administrator responsible for disciplinary procedures, the

Esteban requirements provide a useful checklist" (p. 304).

The Esteban case developed when two students at Central Missouri State

College were suspended for participating in two nights of student demonstrations.
The students received oral notification of the charges, as well as a hearing before a











one-member committee, prior to their suspension. The lower court ruled that the

students had been denied procedural due process by the institution (Kaplin, 1985).

The Esteban court ordered Central Missouri State College to provide the following

due process protections: (1) a written statement of the charges must be provided

to accused students at least 10 days prior to a hearing; (2) the students must have

an opportunity in advance to examine evidence the college intends to submit at the

hearing; (3) the decision made must be based only upon information presented at a

hearing; (4) a hearing must be given before the persons) who has the power to

expel or suspend the students; (5) the students must be allowed to have counsel

present to advise them but not to question witnesses; (6) the students must have

the opportunity to present their version of the facts; (7) the students must have the

right to hear all information presented against them and question adverse

witnesses; (8) the students must be provided a written statement of the findings

and have the right to record the hearing at their own expense (Kaplin, 1985).

The Esteban decision provided for administrators, who may be unhappy

with the specific due process steps outlined in Esban, a map to proceed in cases

involving student suspension and expulsion. As the courts have built upon

Esteban, new components have been added to the due process procedure.

However, most of the subsequent cases have supported higher education

administrators by providing a degree of flexibility in meeting due process

requirements (Kaplin, 1985). In addition, the evolutionary nature of judicial

interpretation can be observed in Goss v. Loez(1975). In this case the court

ruled that suspensions prior to a hearing may take place only if it was determined











that continued attendance of the accused student "poses a continuing danger to

persons or property or an ongoing threat of disrupting the academic process"

(p. 583).

The Gos case is particularly noteworthy in that the United States Supreme

Court confirmed the national applicability of the preceding due process

interpretations by extending them to secondary school students. In Goss nine high

school students were suspended for periods of up to ten days for participating in

student demonstrations. The court cited property and liberty rights, found in the

Fourteenth Amendment, as justification for requiring due process before a student

can be denied his/her educational opportunity. To deny a student his/her education

may impact his/her reputation and future educational and employment

opportunities (liberty interests). Plus, state law mandates the right to receive a

high school education (property interest).

While the Fourteenth Amendment was utilized by the courts to level the

field between students and administrators in disciplinary cases, it has not met the

same warm judicial reception in academic cases. The due process clause of the

Fourteenth Amendment also applies to academic dismissals, but, even though they

may be more damaging, the application of due process in academic dismissals is

much less than in disciplinary cases (Kaplin, 1985). Courts are much less eager to

become involved in cases involving academic judgments due to its evaluative

nature and the courts' lack of competence in academic affairs.

Several cases tested the water in academic due process cases before the

landmark U. S. Supreme Court case Board of Curators of the University of

Missouri v. Horowitz (1978). The first case that acknowledged the existence of











due process in academic termination or suspension was Gasar v. Burton (1975).

Even though the student's dismissal was upheld, the court recognized a "property

interest" in continued attendance and further stated:

We hold that school authorities, in order to satisfy due process
prior to termination or suspension of a student for deficiencies in
meeting minimum academic performance, need only advise that
student with respect to such deficiencies in any form. All that is
required is that the student be made aware prior to termination of
his failure or impending failure to meet those standards. (p. 850-
51) (cited in Kaplin, 1985).

Academic due process was extended further, and the student came up a

winner, in Greenhill v. Bailey (1975). The court invalidated a medical student's

dismissal for lack of intellectual ability or insufficient preparation, because he had

not been accorded procedural due process. The court wrote:

At the very least, Greenhill should have been notified in writing of
the alleged deficiency in his intellectual ability, since this reason for
his dismissal would potentially stigmatize his future as a medical
student elsewhere, and should have been accorded an opportunity
to appear personally to contest such an allegation. (p. 9) (cited in
Kaplin, 1985)

Next came the landmark Horowit case in which the U. S. Supreme Court

did more than narrow academic due process; they set the tone. In this case a

student, who had received excellent grades, was dismissed for deficiencies in

clinical performance, personal relations and personal hygiene (Kaplin, 1985). The

school's council on evaluation allowed the student to take a special oral and

practical exam, given by area physicians, as well as a year to improve before her

dismissal was approved. The student sued, but the United States Supreme Court











upheld the dismissal stating that "respondent has been awarded at least as much

due process as the Fourteenth Amendment requires" (p. 85).

The United States Supreme Court set the limits in academic due process

cases. Cases involving academic dismissals have generally been decided in favor of

the institutions and Horowitz reinforces the concept of "academic deference" from

the judicial perspective. The Horowitz case served to distinguish between

academic and disciplinary dismissals and the due process requirements for each.

Generally, academic dismissals require less due process than disciplinary cases, but

the general theme of "fundamental fairness" continues. Institutions enjoy much

more freedom and insulation from judicial review in their relations with students

relating to academics, the academic community and academic decision-making

(Kaplin, 1985).

Prior to 1961 American public higher education institutions operated with

little if any oversight or judicial accountability. Students participated in public

higher education with the rights afforded a child under the doctrine of in loco

parents. The Dixon decision forced institutions to dramatically alter their

relationships with students and their attitude toward students. Student rights,

privileges and status grew significantly as institutions responded to Dixn, as well

as other agents of change.

Since 1961 students in public institutions have come to expect rights such

as proper notice and hearing whenever a university initiates a disciplinary action.

The opportunity to appeal decisions and a modicum of review are also expected

(Manning, 1990). However, the due process procedures now enjoyed by students

have done more than further student rights. Lerblance (1979) writes, "Although a











central function of due process notice and hearing is accurate factfinding, due

process also operates to promote human dignity" (p. 632). In providing students

an opportunity to be heard, which implies the institution is listening, "a due process

system implicitly acknowledges their dignity as human beings" (p. 632). Students

perceive themselves as important and having more self-control and accountability

with a campus judicial system tuned to due process. Reasonable due process,

whether in academic or disciplinary situations, will further the educational goals of

an institution rather than handicap them.

Judicial Systems Before 1961

Student discipline has been a central part of higher education since the

beginning of higher education. The first college disciplinary code in American

higher education was published by Harvard in 1642 and consisted of 19 items.

Harvard's code was modeled after Cambridge University and reflected the values

of the Puritan leaders of that day.

The early codes were primarily designed to guide students to hold to a

strict morally-perfect Christian life. The rules and discipline codes had a singular

purpose which was to discover moral transgressors, punish them, and then return

them to a life characterized by exemplary Christian virtues. These early disciplinary

codes gradually expanded to fill page after page of collegiate handbooks. The goal

of college officials was to try to forbid every conceivable student delinquency

covering every aspect of a student's personal life. Students were held accountable

and expected to model Christian behavior (Fratoe, 1974).











The early practice of student discipline was begun by reading the rules

aloud to the assembled student body. The rules assemblies often included students
reciting an oath to conduct their lives in accordance with the code by reflecting a

Christian lifestyle. The discipline codes gradually expanded and institutions were

forced into distributing written copies. In 1802 the discipline code of Union

College reflected the expansion as their code consisted of 141 rules, while the

University of Georgia's 1803 code filled 16 pages (Fratoe, 1974).

Eventually the conduct codes regulating moral discipline and behavior
evolved in favor of a vague general regulation. These regulations, requiring

students to behave like ladies and gentlemen, often included phrases such as
"ungentlemanly conduct," "conduct unbecoming to a student," and "conduct

against the best interests of the institution." From the 160(0s until the 1960's these

single, vaguely-worded rules were the source of immense power to college
officials who, unfettered by legal constraint and protected by the in loco parents

doctrine, governed students (Fratoe, 1974).

The United States Constitution, adopted in 1787, was ignored for almost
200 years on college campuses in the United States. Up until the 1960's the

doctrine of in loco parents provided power to college officials that the courts and

society were reluctant to challenge. Individual rights guaranteed by the

Constitution were no longer in effect upon enrollment in a college or university.

The discipline standards and codes that were in effect from the 1600's to the 1960's

are reminiscent of medieval times and provided for unmitigated discretion on the

part of college officials. "'Conduct unbecoming a student' was sufficient standard

for dismissal without any sort of hearing" (Reidhaar, 1985, p. 344).











Prior to Dion in 1961 there was not a case upholding the rights of a

student under the Constitution. A Maryland case, Woods v. Simpson (1924), was

illustrative of the climate that higher education operated in right through the

1950's. The court's opinion stated:

The maintenance of discipline, the upkeep of the necessary tone and
standards of behavior in a body of students in a college, is, of
course, a task committed to its faculty and officers; not to the
courts. It is a task which demands special experience, and is often
one of much delicacy, especially in dealing with girl students; and
the officers must, of necessity, be left untrammeled in handling the
problems which arise as their judgment and discretion may dictate,
looking to the ends to be accomplished. (p. 547)

The final case perpetuating the existing system of student discipline that
essentially had been in place since the 1600's was Steier v. New York State

Education Commission (1959). The United States Court of Appeals upheld the

suspension of a student who had been suspended for writing a letter to the college

president using intemperate language. He apologized and was reinstated, but then

he complained to the student paper claiming the administration was discriminatory

and vindictive. The student was suspended again and later dismissed for

reappearing on campus. The court stated, "Education is a field of life reserved to

the individual states" (p.18). The court concluded that to hold otherwise "would

lead to confusion and chaos in the entire field of jurisprudence in the states and in

the United States" (p. 13).

A dramatic about-face occurred in 1961 when, in the Dixn case, the

courts began to view the college student as possessing and retaining constitutional

rights. "The greatest change that has occurred in higher education involves the











enforcement of federal constitutional rights in colleges and universities" (Barr,

1988, p. 45). The legal basis for the courts to apply constitutional principles to

public campuses developed from four movements: the Bill of Rights, the Civil

War amendments, desegregation of the schools and civil rights (Buchanan, 1988).

The Bill of Rights, which includes the first ten amendments in the

Constitution, guarantees rights such as due process, equal protection, free speech,

free press, right to assembly and association, and protection against unreasonable

search and seizure. The Civil War amendments -- the Thirteenth, Fourteenth, and

Fifteenth Amendments -- speak to voting rights, race equity, due process and equal

protection. More importantly, they provided the basis for the application of the

federal constitution to state officials. School desegregation was the third

movement. Brown v. Board of Education (1954) fueled desegregation from

elementary to higher education. Lastly, the civil rights movement, characterized by

freedom rides and lunch counter sit-ins which led to the showdown in Dixon,

forced judges to re-examine the relationship of public higher education students

and their institutions (Buchanan, 1988).

Prior to 1961 the judiciary invariably upheld the validity of any regulation,

including giving the institution the power to dismiss any student at any time for any

reason (Minnesota Law Review, 1968). The judiciary was consistent up to 1961

in its reluctance to review university disciplinary proceedings. The courts

unanimously feared that intervention on their part would undermine institutional

authority and autonomy. However, in 1961 the United States Court of Appeals

for the Fifth Circuit reversed over 300 years of legal and educational theory and an











endless line of case law. The Constitution had now arrived on the public campus

(Bracewell, 1988).

The Dion court stated, "the precise nature of the private interest involved

in this case is the right to remain at a public institution of higher learning where the

plaintiffs were students in good standing" (p. 157). Furthermore, the Dim court

introduced the principles of notice and hearing to disciplinary proceedings to

satisfy the due process protections found in the Fourteenth Amendment. These

protections were further developed and refined in subsequent cases, and especially

in Esteban (1967), which spelled out the due process requirements in great detail.

These protections have become the foundation upon which higher education

discipline systems are operated to this day.

Since 1961 the courts have nudged and guided higher education into

developing discipline programs that protect constitutional rights. In Zanders v.

Louisiana State Board of Education (1968), the court declared:

If minimum standards of fairness, having been repeatedly articulated
for over fifty years, are not afforded to students in disciplinary
cases,... courts, state and federal, will draft rules. .to insure that
rights of students adequately are protected. (p. 760)

In addition, the court in Zanders strongly recommended that "disciplinary

rules and regulations adopted by a school board should be set forth in writing

promulgated in such manner as to reach all parties subjected to their effects"

(p. 747). The assimilation of due process and constitutional protections into the

college community was furthered in 1968 in a ruling known as the "General Order

on Judicial Standards of Procedure and Substance in Review of Student Discipline

in Tax-supported Institutions of Higher Education" (45 F.R.D. 133).











The "General Order"

In 1968 four judges in the Western District of the United States District

Court, confronted with three major cases involving student discipline in state

institutions, sat en bane to develop uniform standards of procedure and substance

applicable "to actions concerning discipline of students in tax-supported

educational institutions of higher learning" (General Order...p. 135). The court

refused to be drawn into a philosophical discussion addressing the merits of

whether higher education is a right or a privilege (Travelstead, 1987). The court

stated that equal opportunity for admission and attendance is protected by the

Constitution. Furthermore, the court said, "It is unimportant whether this

protected opportunity is defined as a right or a privilege. The protection of the

opportunity is the important thing" (p. 144).

The judges dedicated considerable time and space to a tribute to higher

education. The judges first said that "A court should never intervene in the

processes of education without understanding the nature of education" (p. 136).

The court further said:

Education is the living and growing source of our progressive
civilization, of our open repository of increasing knowledge, culture
and our salutary democratic traditions. As such, education
deserves the highest respect and the fullest protection of the courts
in the performance of its lawful mission. (p. 136)

Concluding their tribute to education the court stated, "If it is true, as it well may

be, that man is in a race between education and catastrophe, it is imperative that

educational institutions not be limited in the performance of their lawful missions

by unwarranted judicial interference" (p. 141).











The General Order establishes the obligations of a student by pointing out

that attendance is voluntary and thus the student voluntarily accepts the obligations

of performance and behavior as established by the institution. The student may not

act in a manner that prevents the accomplishment of the mission or function of the

institution. The court further states that the disciplining of students is a part of the

teaching process. While the tone is reminiscent of judicial nonintervention, and

deference to the institution, the court balances its order in defining "Provisional

Procedural and Jurisdictional Standards In Student Discipline Cases Under Section

1983, Title 42."

The General Order states clearly that institutions are obligated to give to

students due process of law. Three minimal requirements developed from the

concept of "fundamental fairness". The first provides for a written notice of

grounds and evidence. Second, the student must be given an opportunity to be

heard. Third, "no disciplinary actions [may] be taken on grounds which are not

supported by any substantial evidence" (p. 147).

Student Conduct Codes

The evolution of student conduct codes in response to judicial rulings and

societal expectations has taken some curious directions. Institutions have tried to

balance their standards, their communities' standards, and the expectations of

students and the judiciary. In addition, institutions have been forced to relinquish

the pervasive power they had enjoyed for hundreds of years and many have

retained elements of judicial policies that were in effect prior to 1961 in the heyday

of the in loco parents doctrine.











The general regulations that were in existence up until the 1960's have

given way to more specificity and precise regulations. Higher education

institutions across the United States have revised their codes in attempts to make

them as precise as possible and to incorporate the judicial mandates that have

evolved since Dixon. Institutions, recognizing that due process had arrived to stay

on campus as an essential component of student discipline, began incorporating

due process procedures into institutional policy (Alystyne, 1968). However, many
institutions have been slow to adapt and they have retained old regulations that

have been challenged and litigated. Contributing further to litigation and the
evolutionary process of student judicial standards is the reluctance of the United

States Supreme Court to rule on due process requirements at state institutions.

Greene, 1969, elaborated:

The practical effect of the failure of the high court to rule in this
area means that a student can receive substantially different results
in a case involving similar facts and issues depending upon in which
jurisdiction the suit is brought. (p. 498)
The effect of not prescribing required due process requirements has
allowed for each of the specified procedures identified in Esteban to be litigated as

they have gradually evolved into accepted practice. In addition to judicial rulings,

The Council for the Advancement of Standards for Student Services/Development

Proams (CAS) (1985) has developed standards and interpretive guidelines for

judicial programs and services.

The Dion decision and subsequent court rulings have established that a
student is entitled to a hearing. However, several cases have been litigated to

define the expectations required of a hearing. In Brown v. Knowlton (1974) the











issue was timeliness of the hearing, and in Hart v. Ferris State College (1983) the
question centered around whether a student should be granted a public or private

disciplinary hearing. Additional cases addressed issues such as individual or group
hearings, Buttrey v. Smiley (1968), and the number of charges addressed in the

same hearing, Turof v Kibbie (1981).

Buchanan (1988) outlines the important characteristics required of a

hearing. He suggests that the hearing be found without being adversarial and that

both sides have a fair opportunity to be heard. "The hearing should exemplify a
commitment to fairness" (p. 278). The CAS standards provide greater detail and

specify the composition of the hearing body and the appellate boards and the

responsibilities of judicial body members.

Vagueness is another area that was addressed in several cases. In Solin v.
Kauffman (1968) the courts ruled that the term "misconduct" was vague and the

university had to "reformulate reasonably definite and narrow rules of conduct"

(p.995).
The standard of proof and the burden of proof have been focused as a
result of several cases. The courts have consistently said that a hearing before a
judicial board is not a criminal proceeding and therefore a criminal standard of

proof is not required. Bracewell (1988) and Pavela (1980) suggest that the

standard of proof should be clear and convincing evidence. Proof beyond a

reasonable doubt or proof by a mere preponderance of evidence should be
avoided. The issue of burden of proof, while not specifically addressed by the

courts, was indirectly recognized to be the responsibility of the institution in

Zanders











Another key component of due process that has received significant

attention by the courts and campus judicial officers is the right to counsel. Courts

and universities have experienced significant disagreement on this issue with some

courts affirming a right to counsel and others denying it

Lotlikar (1985) has written extensively on this issue and he cites four

important cases that occurred in 1968. The common denominator in all four cases

is that the student was allowed counsel, but the degree of participation varied. The

right to counsel issue was heavily litigated into the late 1970's until a notable case,

Gabrilowitz v. Newman (1978), was tried. In this case a student faced criminal

charges as well as campus violations for an on-campus incident at the University of

Rhode Island. The student was denied the right to counsel by the university and

the courts found for the student. While Gabrilowit has not been interpreted that a

student has an automatic right to counsel, it has facilitated the acceptance of

counsel in an advisory capacity at a disciplinary hearing (Vessels, 1978).

Buchanan (1988) submitted that if the institution is represented by an

attorney or some type of legal representative, then the student should be too.

Students do not enjoy a constitutional right to counsel and the role of counsel is

generally limited to passive advisor. A 1988 article, "When Lawyers Invade a

Campus Hearing," concludes that "due process is no more than fairness and the

courts have decreed that fairness is possible without lawyers" (p. 3). However,

Lane (1979) writes that "under the traditional due process balancing test, a

compelling rationale for a least limited counsel participation exists" (p. 132). He

concludes that the issue is not as clear as it could be due to different stances taken











by federal courts and he acknowledges the need for the United States Supreme

Court to settle the issue.

Off-campus conduct is another complex issue that can trace its beginnings

back to Gott, where students were prohibited from eating at a local restaurant A

1963 case, Due v. Florida Aricultural & Mechanical University, which reinforced

the notice and hearing requirements begun with Dixan, also provided for

institutional authority over the conduct of students off-campus. In this case,

students were found guilty of contempt of court in Leon County, Florida, and then

were suspended by the school for violation of student conduct regulations. The

students sued and the court supported the institution, providing precedent that a

university can hold students accountable for off-campus actions.

Further solidifying of the institutions' off-campus power occurred in

Krasnow v. Virginia Polytechnic Institute (1976). In this case a student was

sanctioned by the institution for possession of drugs off campus. The United

States Court of Appeals ruled that institutions could discipline students for off-

campus actions as long as they provided an on-campus hearing that met due

process standards (Ardaiolo, 1983). Furthermore, the General Order (1968) stated

that colleges may establish conduct standards and that these standards "may apply

to student behavior on and off the campus when relevant to any lawful mission,

process or function of the institution" (p. 145). Recent trends indicate an

expansion of the universities' reach regarding off-campus conduct. New policies,

generally with the support of, if not requested by parents and the community, have

furthered the role of institutional supervision beyond the campus (Manning, 1990).











The issue, however, is fraught with liability risks and is directly linked to a revival

of the in loco parents doctrine.

Student conduct codes have responded to the evolutionary and patchwork

rulings from the courts as students and institutions have litigated and litigated

during the last 20 years. Issues such as cross-examination, witnesses, written

findings, interim supervisions, formal procedures, and impartial hearing bodies are

just a sample of the issues pursued in the courts. Codes have been developed from

court rulings, The General Order (1968), the professional literature, and the

standards developed by the Council for the Advancement of Standards for Student

Services/Development Programs (CAS). However, since the very nature of the

law makes it evolutionary and not absolute, and since institutions vary in size,

character, location, and types of students, the conduct codes reflect the uniqueness

of the institutions and are subject to interpretation.

Implications & Standards

Laudicina and Tramutola (1974), in their guide book titled A Legal

Persective for Student Personnel Administrators, identify three key aspects of a

student judicial system. First, institutional officials must define their rules.

Secondly, officials need to explain precisely the implementation of these rules.

Thirdly, officials must notify the students of these decisions. The development of a

quality judicial system is central to maintaining discipline within the institution.

Hammond (1973) writes that the judicial system enables the institution to meet its

legal responsibilities of pursing the institutional mission, protecting and maintaining











the facilities and campus, and guaranteeing the rights of the members of the

university community.

The Council for the Advancement of Standards (CAS), which was

comprised of 22 professional associations working together to create a set of

professional standards to guide student services/development programs, published

standards for judicial programs and services in 1986 that have been widely

accepted. The (CAS) recommendations state:

Judicial programs should contribute to the teaching of appropriate
individual and group behavior as well as to protecting the campus
community from disruption and harm. The programs should be
conducted in ways that will serve to foster the ethical development
and personal integrity of students and the promotion of an
environment that is in accord with the overall educational goals of
the institution. (p. 54)

The General Order (1968) points out that a goal of student disciplinary

programs should be teaching and these programs should contain a student

development philosophy. "The discipline of students in the educational community

is, in all but the case of irrevocable expulsion, a part of the teaching process" (p.

137). Manning (1990) concludes that "any student disciplinary system --

moreover, any policy -- must reflect the ethics, values, mission, and goals of the

institution which utilizes it" (p. 121). This educational, student development

philosophy is supported by Ardaiolo (1983), who writes that students who violate

institutional regulations are often the students who could benefit the most from

disciplinary responses that contribute to their cognitive, ethical, and interpersonal

growth.











The (CAS) recommendations have provided standards that are influenced
by the uniqueness of each institution. Each institution's judicial code should be

extensions of the institution's educational mission. The educational philosophy, the

administrative organization, and the extent of authority and responsibility must be
detailed in the judicial code. Descriptions of the judicial system's organization

should explain administrative roles, as well as judicial boards. Definitions,

statements of student rights and freedoms, and conduct expectations must be

communicated to the campus community (CAS, 1986).

Included in the (CAS) recommendations for judicial codes are the various
procedures the system will use. Prehearing procedures, hearing procedures, and

appeals must be specified. Sanctions must also be specified and explained as

comprehensively as possible. All options such as reprimands, probations,

separations, fines, restrictions, and referrals should be specified. Finally, judicial

systems should speak to interim suspensions and emergency procedures, the

institutional policy on records and information, as well as the policy on

confidentiality.

While the (CAS) recommendations provide guidelines applicable to the
broad diversity of institutions, universities must consider their own unique

institutional characteristics in formulating theirjudicial system. The existing

judicial system, the types of students, size of the institution, whether public or

private, as well as the historical tradition of the institution, will influence the

judicial system (Ardaiolo & Walker, 1987).

National studies of institutional judicial systems reflect the incorporation of
many of the (CAS) recommendations and the increased availability of due process











safeguards. The studies also demonstrate the lack of standardization, the variety

of judicial systems, and the new issues that are being questioned and contested.

Steele, Johnson and Rickard (1984), in a national survey of judicial policies

and practices, documented the range of judicial systems and student judicial

emphasis. Their findings indicate that while the judicial functions on most

campuses experienced rapid development, this did not lead to corresponding

changes in organizational structure. In addition, institutions indicated a concern

that the judicial system had become overly legalistic. Also, some schools

specifically said they were "examining policies and procedures to streamline the

judicial process and provide more timely, less complicated, less legalistic hearings"

(p. 341).

Michael Dannells (1991) reported recent findings from a national

longitudinal study that compared the results of two identical national surveys over

10 years. Dannells' reports that significantly more institutions are involved with all

student behavior, whether on or off campus. The study also shows institutions are

significantly more likely to publish and make available rules and procedures than

10 years ago, but students are having less input into the rules.

In results that examined the availability of 18 due process safeguards,

significant differences were reported on five of the 18. Increases were reported on

percentages of schools that provide oral notices of the hearing, allow the student

counsel (but not an attorney), and that allow for a jury upon request. Significant

decreases were noted in the percentage of institutions that allow a student to

confront and cross-examine witnesses and that allow a public hearing on a

student's request.











Dependent Variables

Research in student discipline has been sparse, focusing primarily on due

process and administrative policies and practices in campus judicial affairs. Studies

by Dutton, Smith and Zarle (1969), Golden (1982), and a longitudinal study by

Dannells (1991) focused on the practices and procedures of judicial systems on

campus. In addition, a study published in the Duke Law Journal in 1970, titled,

"Procedural Due Process and Campus Disorder: A Comparison of Law and

Practice," also focused on practices in student judicial systems. The due process

rights of students as perceived by the chief student affairs officer or the person

most responsible for disciplinary affairs was also a common theme of these studies.

Studies conducted by Ostroth, Armstrong, and Campbell (1978) and

Steele, Johnson and Rickard (1984) were directed at student affairs professionals

responsible for disciplinary affairs. Both survey studies requested information on

the respondents' judicial systems and asked them to indicate their perceptions on

changes in judicial systems and student conduct rules. They were also asked about

their opinion on influences and trends in judicial affairs.

A study done by Gordon (1971) was based on actual court-contested

student disciplinary procedures. In his survey the items provided a brief

description of an event or situation concerning student discipline and two possible

courses of action, one of which is the "right" response based on the court decision.

Based on the scenarios depicted in the items, the respondents base their choice on

their knowledge of court decisions effecting student rights.

As a result of the previous research in campus judicial affairs and a review

of the related literature, the researcher developed four dependent variables to











examine in this study. The Judicial Affairs Survey is comprised of survey items

that are sectioned according to the dependent variables. The dependent variables

being examined are (a) judicial officers' perceptions of the rights of students in

disciplinary proceedings in public higher education institutions; (b) current

practices with regard to student rights in disciplinary cases in public higher

education institutions; (c) judicial officers' attitudes toward student rights in

disciplinary cases in public higher education institutions; and (d) judicial officers'

level of knowledge and understanding of existing law with regard to student rights

in disciplinary cases in public higher education institutions.

Summary
Eighty-one years ago a judge wrote that college authorities may make any

decision for the government or betterment of their students that a parent would

make (Gott v. Berea College. 1913). In fact, it was only 37 years ago that Warren

A. Seavey (1957) questioned why a court supports a state educational institution

in denying a student the protection that courts give to a pickpocket. Undoubtedly,

the relationship between students and educational institutions has changed

dramatically and nowhere are these changes more noticable than in student affairs.

Student discipline has been a demanding area for student affairs

professionals and is becoming even more so (Ostroth & Hill, 1978). Previous

studies track a more legalistic stance being taken on disciplinary measures by

student affairs professionals. In addition, the establishment of judicial offices and

the training of student affairs professionals as professional judicial officers are also

becoming more common. The helping relationship in student discipline has been











eclipsed by a need for procedural due process and legalities in student discipline

(Ostroth & Hill, 1978).

Attempts by the courts to define the student-educational institution

relationship have often been ambiguous (Fowler, 1984). Nordin (1980) wrote that

"in cases involving student rights.. .the courts have failed to articulate any clear

legal concept" (p. 141). As a consequence of the lack of clear structure to guide

the student-educational institution relationship, there is inconsistency and

uncertainty plus a fear of liability on the part of university judicial officers.

The law is never static. Law, like society, is ever evolving (Young, 1976).

As the 21st century rapidly approaches, issues such as the student-educational

institution relationship, campus judicial systems and student rights are continuing

to evolve. Michael Dannells (1991) concluded in his study that there is a move

toward a more control-oriented, authoritarian, paternalistic trend in the

relationship of institutions to their students. "The process of disciplinary affairs is

generally more complex and is approached with greater diversity today that it was

10 years ago" (p. 412). Dannells expresses concern with the state of judicial

affairs, especially in light of significant student-conduct issues such as
"racial/ethnic intolerance and violence, sexual violence, and deaths from hazing and

alcohol abuse" (p. 414).

The results of this study should assist student affairs professionals, students

and parents to better understand what are the current perceptions of student rights

and student discipline practices of judicial officers. In addition, the views of

judicial officers toward the student-educational institution relationship, as related

to student conduct and disciplinary proceedings, can be developed. And, the





74





recommendations from judicial officers for future practice are reported and

analyzed. These results should help define the current practices, attitudes and

perceptions of judicial officers toward student rights in American public higher

education.














CHAPTER 3
METHODOLOGY


The legal relationship between students and the public higher educational

institutions they attend continues to shift and change. The courts have failed to

communicate a consistent, clear approach to guide higher education administrators

in this important area. Greene (1969) wrote that the failure of the United States

Supreme Court to articulate a clear code and standard regarding student rights

"means that a student can receive substantially different results in a case involving

similar facts and issues depending upon in which jurisdiction the suit is brought"

(p. 498). Szablewicz and Gibbs (1987) characterized the directions concerning

student rights that the courts and legislatures give to higher education as erratic,

broad, and ambiguous. As a consequence of the lack of direction, guidelines, and

structure to guide the student-educational institution relationship, student rights

principles are misunderstood, misapplied, and sometimes simply ignored by higher

education judicial officers.

The purpose of this study was to determine the perceptions of judicial

officers with regard to student rights, in student disciplinary proceedings, and to

examine the judicial officers' opinions, practices, and levels of knowledge

regarding student discipline in public higher education. Additionally, the

recommendations that judicial officers in public higher education have for future

practice were examined and discussed.











The remainder of this chapter includes specific research questions, relevant

variables, the population and the sample studied. In addition, instrumentation

procedures for data collection, including those used in the pilot study, and data

analyses are included.

Research Ouestions

The researcher attempted to answer the following questions in this study:

1. What do judicial officers perceive are the rights of students in

disciplinary proceedings in public higher education institutions?

2. What are the current practices of judicial officers with regard to

student rights in disciplinary cases in public higher education?

3. What are the opinions of judicial officers toward current judicial

systems in American public higher education?

4. What is the level of knowledge and understanding of existing law,

with regard to student rights in disciplinary cases, of judicial

officers in public higher education institutions?

5. What do judicial officers believe has been the biggest influence on

student judicial systems in the last decade?

6. What model of the student-educational institution relationship do

judicial officers believe is most appropriate?

7. Is there a significant relationship between personal characteristics of

the judicial officers including gender, ethnicity, highest degree

earned, years of experience in current position, title, and (a)

their perceptions of the rights of students in disciplinary











proceedings in public higher education institutions; (b) their current

practices with regard to student rights in disciplinary cases in public

higher education institutions; (c) their opinions toward existing

judicial systems in public higher education institutions; and (d) their

level of knowledge and understanding of existing laws with regard

to student rights in disciplinary cases in public higher education

institutions?

8. Is there a significant relationship between institutional

characteristics including enrollment size, urban vs. rural, NASPA

region, and classification such as college, university or community

college and (a) judicial officers' perceptions of the rights of students

in disciplinary proceedings in public higher education situations;

(b) current practices with regard to student rights in disciplinary

cases in public higher education institutions; (c) judicial officers'

opinions toward the current judicial system in public higher

education institutions; and (d) judicial officers' level of

knowledge and understanding of existing law with regard to student

rights in disciplinary cases in public higher education institutions?
9. Is there a significant relationship between the model of the student-

educational institution relationship that judicial officers believe is

most appropriate and (a) judicial officers' perceptions of the rights

of students in disciplinary proceedings; (b) the current practices of

judicial officers with regard to student rights in disciplinary cases;
(c) the opinion of judicial officers toward the existing judicial











system; and (d) the level of knowledge of judicial officers of

existing law with regard to student rights in disciplinary cases in

public higher education?

10. What recommendations do judicial officers have for future practice?

Relevant Variables

The independent variables included institutional characteristics and the

personal characteristics of the judicial officers surveyed. Institutional

characteristics studied were (a) university, college, or community college; and (b)

enrollment size. Personal characteristics were (a) title; (b) gender, (c) highest

degree held; (d) years of full-time experience in current position; and (e) ethnicity.

The dependent variables in this study were (a) what judicial officers

perceive as the rights of students in disciplinary proceedings; (b) the current

practices of judicial officers with regard to student rights in disciplinary cases; (c)

the attitude of judicial officers toward current judicial systems; and (d) the level of

knowledge and understanding of judicial officers of existing law with regard to

student rights in disciplinary cases.

Population. Sample. and Procedures

There are 1,568 two or four year public higher education institutions in the

United States (Higher Education Directory, 1993). Of the 1,568 institutions, 594

are four-year institutions and 974 are two-year. Two complete lists of all four and

two-year public higher education institutions were obtained from Higher Education

Publications, Inc. The sample was obtained from the total population of four and











two-year institutions. A minimum N of 40% for 4 year institutions was established

in order to assure sufficient responses for each research question to be analyzed.

Institutions were sent (by first-class mail on November 18, 1994) a packet

containing a cover letter co-signed by the researcher and the Association for

Student Judicial Affairs (ASJA); a stamped, self-addressed return envelope; and

the Judicial Officers Survey. The packets were addressed to the Judicial

Officer/Dean of Students of the participating institution. Follow-up postcards

were utilized to contact all institutions not returning the survey requesting they do

so and to thank the institutions that had returned the Judicial Officers Survey.

Instrument

The Judicial Officers Survey was developed by the researcher using several

related questionnaires, surveys, and studies. The researcher made every effort to

review previous surveys and studies to develop face validity for the Judicial

Officers Survey.

A primary source for the Judicial Officers Survey was Michael Dannell's

(1990) survey which was utilized in a longitudinal study of changes in student

discipline over ten years, 1977 1978 to 1987 1988 academic years. In addition,

a questionnaire and research conducted by Steele, Johnson, and Rickard (1984)

was adapted to sections of the Judicial Officers Survey. A questionnaire utilized

by Ostroth, Armstrong and Campbell (1978) also contributed to the survey, as well

as a questionnaire and study done in 1970 and reported in the Duke University

Law Journal. Lastly, items relating to the knowledge and understanding of student

rights in disciplinary situations were adapted from Gordon's 1971 unpublished











doctoral dissertation titled, Impacts of Due Process on Higher Education in the

United States.
The Judicial Officers Survey (JOS) was piloted by the researcher utilizing

judicial officers attending the Association of Student Judicial Affairs (ASJA)

national conference in Clearwater, Florida, held February 10 13, 1994.

Seventeen surveys, completed by judicial officers from throughout the United

States, were received by the researcher. The results of the pilot study were

utilized to improve the original instrument and are reported in this chapter.

The Judicial Officers Survey consists of six sections comprising four pages.

Each section is designed to provide data that address a specific research question.

Items are grouped with similar type of response options. Berdie and Anderson

(1974) cite appearance, arrangement, and organization of the items as crucial to

increased response rate and the collection and analysis of data.

Section I of the JOS addresses student rights as perceived by judicial

officers and consists of one item with 17 yes or no choices and an opportunity for

the respondent to include additional choices. The 17 items represent a compilation

of various student rights as gained from the literature. A total score is compiled by

assigning 1 for a yes response, and 0 for a no response.

Section II, which addresses current practices of judicial officers with regard

to student rights in disciplinary cases in public higher education, consists of three

items. Each items requests a yes or no response, with item 1 consisting of 10 yes

or no choices. This section is also scored with 1 assigned to a yes response, and 0

to a no.











Section III contains two items each of which corresponds to a specific

research question. The first item asks for a ranking of six factors that the judicial

officer perceives to have been the biggest influences on campus judicial systems.

Item two provides six choices that describe a model that the judicial officer

believes is the most appropriate for the student-educational institution relationship.

Section IV consists of five closed (categorical) items that provide a brief

description of an event or situation involving student discipline. The respondent

has a choice of two possible courses of action in response to the event or situation.

One of the choices is based on an actual court decision from a disciplinary case

that went to either a state or federal court. The other choice is a possible

alternative to the court decision. The correct response is assigned a 1, and the

other response is assigned a 0.

Section V contains 11 items structured with Likert Scale response options

from strongly agree to strongly disagree. The five favorable response choices are

scored by assigning a 5 to strongly agree, 4 to agree, 3 to undecided, 2 to disagree,

and a 1 to strongly disagree for the five favorable items. For the six unfavorable

items the response choices are scored by assigning a 1 to strongly agree, 2 to

agree, 3 to undecided, 4 to disagree, and a 5 to strongly disagree. Section V,

which addresses the favorable vs. unfavorable opinions of judicial officers toward

the current judicial systems in public higher education, also reports a total score.

Section VI, the final section, consists of an open-ended question asking

judicial officers for their recommendations regarding future practice in student

judicial affairs. Good (1963) stated that "the open-end or free-response

questionnaire frequently goes beyond statistical data or factual material into the











area of hidden motivations that lie behind attitudes, unrest, preferences, and

decisions" (p. 277). The responses in this section are coded and "reduced to

themes or categories and evaluated subjectively" (Rudestam and Newton, 1992,

p. 31).

As noted, the researcher has developed the Judicial Officers Survey

through the adaptation of previously utilized instruments, a pretest of judicial

officers from throughout the country, and through discussions and contributions

from researchers and experts in the field of student affairs practice in higher

education. Content and format were the key areas of emphasis as clear

communication is crucial to an effective questionnaire study. Berdie and Anderson

(1974) caution that "each question should be so clearly worded that all

respondents will interpret it the same way" (p. 37). In addition, format

considerations such as making the questionnaire "appealing to the eye," grouping

items into logical sections and choice options, and providing a variety of item types

and choice options contributed to an interesting and appealing questionnaire.

Pilot Study

"Every questionnaire without exception should be given a thorough trial

before it is used in a survey. The faulty construction which will be revealed by

thorough protesting is worth infinitely more than the cost involved" (Florida

Community Junior College Inter-institutional Research Council, 1970, p. 11).

Berdie and Anderson (1974) also emphasize the importance of protesting. They

claim that this preliminary work may make the crucial difference between success











and failure, impacting the response rate and cooperation of respondents, as well as

the reliability and validity of the results.

The Judicial Officers Survey was piloted at the national conference of the

Association of Judicial Affairs (ASJA) in Clearwater, Florida, held February 10 -

13, 1994.

ASJA is an organization of professional educators who are responsible for

administering standards of student conduct within colleges and universities. ASJA,

formed in 1988, is dedicated to the "integration of student development concepts

with principles of judicial practice in post-secondary educational setting and to

promote, encourage and support student development professionals who have

responsibility for judicial affairs" (ASJA Governing Documents, 1994, p. 2). The

1994 conference was attended by over 400 professionals from throughout the

United States and Canada.

On Friday, February 11, 1994, the researcher attended a concurrent session

titled Facing the Research Challenge: Past Achievements and Future Priorities for

Judicial Affairs. Dr. Don Gehring, Director of the Doctoral Program in Higher

Education & Student Affairs at Bowling Green State University and the founder of

ASJA, introduced the researcher to the audience and encouraged them to

participate in the survey. The researcher then spoke briefly about the Judicial

Officers Survey and distributed 30 surveys to the audience.

The researcher was introduced again by Dr. Dennis Gregory, president-
elect of ASJA, following the keynote speaker at the February Ilth plenary session.

Dr. Gregory directed the audience to obtain a survey, which was available at the

resource table in the lobby, and return the completed survey to a collection











envelope mounted on an easel in the lobby. The researcher collected 17 completed

surveys by Sunday, February 13, 1994.
As a result of the responses, written comments, and personal feedback

received while conducting the pilot study, some items were reworded and response

choices, as well as the directions, were clarified. An example of feedback obtained

and implemented from the pilot study was reflected in the following quote: "Please

correct your use of pronouns it's offensive to fill out a survey that doesn't use

gender neutral language."

The original survey was revised to the current version (see Appendix A) to

reflect the results of the pilot study and to increase its validity.

Data Analyses

The primary statistical methods utilized in this study were descriptive,

regression and analysis of variance. The researcher's use of regression tests and

analysis of variance statistics determined whether there was a significant

relationship between the independent and dependent variables. Descriptive

statistics included frequency counts, means, and percentages. In addition,

qualitative analysis including coding and categorizing, were applied to the written

responses. The coding involved identifying information units which were then

organized into categories based on similarity in meaning (Rudestam & Newton,

1992).

For research questions 1 through 6, the judicial officers' responses were

analyzed by using descriptive statistics. Means and standard deviations for the

relevant variables are reported in chapter 4. The responses for research questions











7 through 9 were analyzed using regression tests and an analysis of variance

statistics. The written responses given by the judicial officers for research question

10 were analyzed using qualitative methods as described above.

Limitation of the Study

The sample included 1,568 two- and four-year public higher education

institutions in the United States as obtained from the Higher Education Directory.

(1993). However, even though the sample is representative, there was a response

differential between the two and four year institutions. In addition, the results of

this study are not generalizable to private institutions.

The Judicial Officers Survey was pilot-tested and developed using related

questionnaires, surveys, and studies, but it is not a nationally standardized

instrument. The Judicial Officers Survey is a self-reporting instrument and the

possibility of response bias from judicial officers giving a desired answer must be

acknowledged.













CHAPTER 4
DATA ANALYSES AND RESULTS


The purpose of this study was to determine the perceptions of judicial

officers with regard to student rights in student disciplinary proceedings, to

examine the judicial officers' opinions, practices, and the level of knowledge held

by these officers regarding student discipline in public higher education.

Additionally, the recommendations that judicial officers in public higher education

hold for future practice were examined and discussed.
Data collection procedures, response rates, data analyses and findings of

the study are discussed in this chapter. Descriptive data regarding the independent

variables gained from the returned surveys are also provided and discussed.

Data Collection and Response Rates

The Judicial Officers Survey, cover letter, and stamped return envelope

were sent to the 1,568 public higher education institutions (594 four-year and 974

two-year) in the United States, on November 18, 1994. All institutions were

assured anonymity. A follow-up postcard was mailed on December 12, 1994, to

all 1,568 institutions. The card thanked the institutions which had completed and

returned the survey and also requested the institutions that had not returned the

survey to please do so. Thirteen weeks were allowed for the return of the survey.

Three surveys were returned after the February 6, 1995, deadline and are not

included in the data reported in this study.











The total surveys returned prior to February 6 were 541. This represented

35% of the institutions sent surveys. Two hundred and fifty-two were returned

from the 594 four year institutions representing a return rate of 47%. Two

hundred eighty-nine of the 974 two-year institutions returned the Judicial Officers

Survey for a return rate of 30%. The survey consists of 48 response items. The

surveys that were not entirely completed are included in the results. However, if

an item in one of the sections was not answered on an individual survey then that

entire section was not reported for that survey.

Description of Research Sample

Tables 1 and 2 provide descriptive statistics for the independent variables

of the personal and institutional characteristics of the judicial officers and

institutions comprising the research sample.

TABLE 1

Descriptive Data on Personal Characteristics of Judicial Officers


Personal Characteristics Frequency Percentage


Tite
Vice President 86 19.0
Dean 228 50.4
Judicial Officer 31 6.9
Director 58 12.8
Other 49 10.8











Table 1 continued


Personal Characteristics Frequency Percentage


Gender
female 160 32.3
male 332 66.9


Highest degree held
AA 5 1.0
BA 12 2.3
MA 289 54.9
Ph.D./Ed.D. 220 41.8


Years of experience in
current position
0- 4.9 yrs. 200 37.1
5- 9.9 yrs. 154 28.6
over 10 yrs. 185 34.3


Ethnicity
White 425 77.7
African American 82 15.4
Asian American 25 4.7
Native America 2 0.4
Hispanic/Latino 8 1.5
Other 2 0.4










TABLE 2

Descriptive Data on Institutional Characteristics


Institutional Characteristics Frequency Percentage



Institutional Type
2 year institution 289 53.6
4 year institution 251 46.3


Enrollment Size
0-3,499 166 31.5
3,500- 9,999 184 35.5
over 10,000 168 32.4




Data Analyses Procedures

The data analyses for this study were completed with the use of descriptive

statistics, analysis of variance, regression, and qualitative analysis. Research

questions 1 6 were analyzed using descriptive methods. Analysis of variance

(ANOVA) and regression analysis were used to check for significant relationships

between the independent and dependent variables for research questions 7, 8 and

9. Lastly, research question 10 was analyzed using qualitative methods.
Regression analysis was used in this study to test for differences between

means using nominal independent variables. Regression analysis was used to

analyze the responses for sections 1, 2 and 4 of the Judicial Officers Survey.

These sections summarized the judicial officers' perceptions toward student rights,











the current practices regarding sanctions and the level of knowledge about existing

case law directed toward student rights. The summarization was based on the

number of "yes" answers out of 17 items for the section concerning perceptions of

the rights of students. The second section, current practices, was based on the

number of "yes" answers on 10 possible items. The next section, level of

knowledge, was based on the number of correct responses on 5 different items.
The purpose of the regression analysis for sections 1, 2 and 4 was to

discern if understandable relationships,(i.e. main effects and interactions) existed

between the independent and dependent variables. An example of a regression

model that uses a nominal independent variable is as follows:
y = bo+ b, *Gender

The independent variable is Gender (F = 1, M = 0) and the dependent variable is y.
Testing for this regression model involves looking for a difference between

the mean of the dependent variable in males and females.
The regression equation for the two levels of Gender is given below:

females (Gender = 1) y = b0 + b, 1 = b0 + b,

males (Gender =0) y = b + b, 0 = b

Thus, the difference between male and female is b,. For example, if there was an

equal number of men and women, and the average of the dependent variable for
men is 12, and for women 20, then b0 would equal 12, b, would equal 8.

The hypothesis test for the difference between males and females is:

Ho: b, = 0 (differences between male and female is 0)
H, : b,* 0











In the example, the hypothesis test occurs from b = 8 taken from the

sample. If another sample was obtained b would not equal 8. This example

demonstrates that the use of regression analysis is appropriate when the purpose is

to examine for relationships between nominal independent and dependent

variables.

Research Ouestions

The results for research questions 1 6, analyzed with descriptive statistics,

are reported for all institutions, 4 year institutions and 2 year institutions. In the

tables given, the researcher reports the number of respondents, the proportions of

judicial officers answering yes or no and the standard deviation found.


Research Question 1

What do judicial officers perceive are the rights of students in disciplinary

proceedings in public higher education? The judicial officers' responses to this

question are given in Table 3.










TABLE

Rights of Students


Rights All institutions 4 Year Institutions 2 Year Institutions
N Yes No SD N Yes No SD N Yes No SD


Student may present
defense

Hearing with explicit
charges

Written notice of hearing

Written notice of decision

May present witnesses

Choose to testify or not

May appeal

May have counsel (not
attorney)


537 .98 .02 .02


539 .97 .03 .03


539 .97 .03 .02

537 .96 .04 .04

536 .95 .05 .05

536 .92 .08 .07

536 .90 .10 .08

534 .87 .13 .11


249 .98 .02 .01


250 .97 .03 .03


250 .97 .03 .02

249 .94 .06 .05

248 .94 .06 .05

249 .92 .08 .07

248 .86 .14 .12

246 .84 .16 .13


288 .97 .03 .02


289 .97 .03 .02


289 .97 .03 .03

288 .97 .03 .02

288 .95 .05 .04

287 .92 .08 .07

288 .94 .06 .05

288 .89 .11 .09









Table 3 continued


Rights All institutions 4 Year Institutions 2 Year Institutions
N Yes No SD N Yes No SD N Yes No SD


Aware of opposing
testimony

Student faces accusers

Prehearing investigation

May confront/cross-
examine

Transcript of hearing

May have attorney

May have public hearing

Evidence not presented
(hearing), but considered
(final decision)

May have jury


537 .83 .17 .14 248 .84 .16 .13 289 .83 .17 .14


536 .80

535 .73

535 .67


536 .59

536 .55

534 .44

512 .31


.20 .16

.27 .20

.33 .22


.41 .24

.45 .25

.56 .25

.69 .21


247 .77

247 .65

247 .70


248 .55

248 .51

247 .43

230 .24


.23 .18

.35 .23

.30 .21


.45 .25

.49 .25

.57 .25

.76 .18


289 .82

288 .79

288 .64


288 .63

288 .59

287 .44

282 .36


.18 .15

.21 .16

.36 .23


.39 .23

.41 .24

.56 .25

.64 .23


534 .20 .80 .16 248 .22 .78 .17 286 .19 .81 .16




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