Higher Education, Law & Principles

Senate votes down due-process protections for college students

February 25, 2020

Ray Carter

A majority of the Oklahoma Senate voted down legislation that would ensure college students facing expulsion have due-process rights comparable to those provided in a court proceeding.

A coalition of Democrats and Republicans jointly voted down the measure, arguing the college system is effectively exempted from legislative oversight and many state laws, and also arguing it would be burdensome if state colleges had to employ attorneys when expelling students from college.

Senate Bill 1466, by Sen. Julie Daniels, would create the “Student and Administration Equality Act.” Under the legislation, any college student accused of a violation of a school’s disciplinary or conduct rules that carries a potential penalty of lengthy suspension or expulsion “shall have the right to be represented at the student’s expense by a licensed attorney or, if the student prefers, a nonattorney advocate.” Under the proposed law, the student’s attorney “may fully participate during the disciplinary proceeding” and would be allowed “the opportunity to make opening and closing statements, to examine and cross-examine witnesses, and to provide the accuser or accused with support, guidance, and advice.”

“The intention of this bill is to put into statute the due-process rights of students at the institutions of higher education to level the playing field between them and the institution in a situation where the disciplinary proceeding could result in a suspension of 10 days or more or expulsion from the institution,” said Daniels, R-Bartlesville.

She said the “biggest difference” between the provisions of SB 1466 and the processes in place at many Oklahoma colleges is that a student’s attorney can be an active participant in a proceeding.

“Students are currently allowed to have an advisor or an advocate with them at a hearing, but that person is not allowed to participate, which I think puts the student at a significant disadvantage, vis-a-vis the institution,” Daniels said. “So I’m trying to level the playing field here with just basic due process rights in hearings that more and more can have the appearance of a trial.”

But several lawmakers indicated Oklahoma colleges have been handing out suspensions and expulsions without the participation of any legal authorities, and claimed colleges would be financially burdened if required to employ an attorney before taking severe disciplinary action.

“A concern that I heard from one of the college presidents was a student would show up at a hearing with representation, the university did not know representation would be there,” said Sen. Darcy Jech, R-Kingfisher. “So is there some way we could allow notice to be given to the school so they know to have representation there on their behalf?”

“I sort of made the assumption that the institution, given how serious the hearing may or may not be, would already have provided for their own representation,” Daniels said.

Sen. Brenda Stanley, R-Midwest City, said Rose State College “does not have an attorney on retainer.”

“Wouldn’t this add an extra burden to those community colleges that don’t have attorneys on staff?” Stanley said.

A similar question was raised by Sen. Mark Allen, R-Spiro.

“Would the passage of this piece of legislation, would it maybe make the institutions think they might have to hire a lawyer to be at their proceedings?” Allen asked.

“At least in larger institutions, there are already general counsels on staff,” Daniels said. “There are also, I would imagine, attorneys within the higher education organization who would be available to assist those institutions who might not have counsel on site.”

Senate Democratic Leader Kay Floyd of Oklahoma City suggested the Legislature had no real authority over the actions of college officials because the Oklahoma State Regents for Higher Education are a constitutionally created entity.

“Do you believe this bill could possibly violate the Oklahoma Constitution by interfering with the governance authority of the Oklahoma State Regents for Higher Education?” Floyd asked.

“We have a difference of opinion on whether or not these due process rights that my bill is trying to protect are superseded by the Regents for Higher Education and their authority to set policy and curriculum and govern their campus,” Daniels said. “And I see them as distinct and I see this as being a superior authority the Legislature has to protect the students’ due-process rights.”

Daniels noted SB 1466 would provide for due-process rights for on-campus infractions that “certainly, outside of campus in the regular community, would be protected by due-process rights.”

In debate, Floyd again suggested the Legislature has no real authority over colleges.

“This isn’t really an issue about due process,” Floyd said. “Because to get to due process, you’ve got to get to jurisdiction, and we cannot clear that hurdle. The State Regents for Higher Education is a constitutional entity. It was set up that way by our founders because they wanted the Regents to have the authority to run the schools and the universities.”

Floyd also argued that imposition of due-process rights would create added expense for colleges that do not currently run expulsion processes under the oversight of any trained attorneys.

“Any policy decisions such as this should be made on a campus-by-campus basis,” Floyd said. “It’s been said that the two-year colleges have attorneys on staff and if they don’t they can always hire an attorney for this type of litigation. We know that’s not practical. We know some of these two-year colleges can’t afford that.”

“I would not, as a parent, want campus-to-campus differences in due-process rights for students,” Daniels countered. “I believe that this levels the playing field and, in a very simple straightforward manner, makes clear to the institutions what the basic due-process rights of those students are in these serious situations of accusations that could result in expulsion.”

SB 1466 failed passage on a 19-25 vote. Republicans hold 38 of 48 Senate seats with one seat vacant.

Seven lawmakers who supported SB 1466 in committee less than a week prior did an about-face and opposed it on the Senate floor: Sens. J.J. Dossett, D-Owasso; Tom Duggar, R-Stillwater; John Haste, R-Broken Arrow; Allison Ikley-Freeman, D-Tulsa; Roland Pederson, R-Burlington; Dewayne Pemberton, R-Muskogee; and Stanley.

The Senate’s rejection of due-process legislation comes at a time the processes used by colleges have been increasingly deemed illegal by courts.

When the Foundation for Individual Rights in Education (FIRE) rated the top 53 universities in the country “based on 10 fundamental elements of due process,” the civil rights organization found “the vast majority of institutions lacked most of the procedural safeguards we looked for in written policies.”

FIRE reported that just 28.3 percent of the universities reviewed “guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.” Only a distinct minority of schools allowed students to have the active participation of an advisor or provided the opportunity for “meaningful” cross examination.

Oklahoma colleges were not among those reviewed in that report.

Nationally, a growing number of students have successfully sued colleges and universities for violations of due-process rights in disciplinary hearings. In 2018, the U.S. Court of Appeals for the Sixth Circuit sided with a student and ruled against the University of Michigan, declaring that “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”