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Conflict Management in Higher Ed Report
Volume 6, Number 1, Nov 2005

Alternative Dispute Resolution
at Public Colleges: Overcoming
Two Built-In Legal Hurdles

Public colleges face two special challenges in resolving disputes that involve students, employees and outsiders. The first is the problem of due process and the second is the problem of free speech. These are problems that public colleges face simply because they are part of the government.

Consider employment. The government—including public colleges—is a special employer. With the people it hires, it stands not only in an employer-employee relationship but also in a government-citizen relationship. A chief reason that our Constitution sets out the powers and privileges of government is the need to protect citizens from the overbearing power of the government. Against governmental power, the individual citizen is weak. While the authors of the Bill of Rights could not have foreseen that a fired college custodian might use its protections to get his or her job back, that custodian is a citizen and is entitled to the protections of the Bill of Rights and the entire Constitution.

When the government becomes an employer it does not stop being the government. It is constrained in its treatment of its employees in the same ways that it is constrained in its treatment of citizens generally. When citizens become public employees they do not stop being citizens. They relinquish none of their rights, although the nature of the employment relationship may temper the absolute exercise of those rights.

When the government becomes an employer, therefore, it bears burdens that private employers do not bear, related to the First Amendment's guarantee of freedom of speech and the Fourteenth Amendment's guarantee of due process of law in the protection of property. The task for the courts in case after case is to determine the scope of that protection in the context of the workplace.

The same considerations are true with respect to the college-student relationship. The government is simply a different kind of educator than a private entity is. When the public college enrolls a student, it does not stop being the government, and when a member of the community takes classes at the college, he or she does not stop being a citizen.

In devising a dispute resolution mechanism that might be useful in conflict situations involving students, employees, and outsiders, the public college must keep in mind its status as an entity of the government and its obligations related to due process and free speech.

The Due Process Hurdle

The Fourteenth Amendment to the United States Constitution provides, in part, that the government may not "deprive any person of . . . property, without due process of law." People readily understand that a citizen may not be deprived of property without due process when the matter arises in everyday contexts. It makes sense to almost everyone that elaborate condemnation proceedings, constituting due process, are required when a citizen's front yard—his or her property—is taken to widen a city street. But real estate is not the only kind of property that citizens have, and condemnation is not the only kind of due process

An employee at a public college who has tenure or who is employed under a contract of a specific duration, can be said to have a "reasonable expectation of continued employment." In the eyes of the courts, that "reasonable expectation" amounts to property.

Similarly, a student at a public college may, at some point in his or her relationship with the college, develop a reasonable expectation of continuing in a course of study. At some point (though at just what point is unclear) that expectation may amount to property.

When a public college dismisses an employee with a property interest in his or her job, the college is engaged in a "deprivation of property" and must meet the due process requirements of the Fourteenth Amendment.

And when a public college dismisses a student ("expulsion" may be the common term), it may be that that student has some level of protected property interest in continued enrollment, so that the college must meet due process requirements in the dismissal. Consider the case of Diane Pugel, a graduate student in physics at the University of Illinois. [1] She submitted an article for publication in a scientific journal and presented the research at a conference of the American Physical Society. Because of concerns that some of the data in the research was fraudulent, a three-member "Inquiry Team" was formed, and that team found sufficient indication of fraud to merit a full investigation. The vice chancellor then named a four-member "Investigation Panel," and the research standards officer gave Pugel notice of the charges and the upcoming hearing. At the hearing, (1) Pugel presented the testimony of her physician that she suffered ADHD and therefore could not have been guilty of academic misconduct, and (2) one of the four panel members left early and did not hear the physician's testimony. The panel concluded that academic misconduct had occurred and the chancellor concurred. Pugel appealed to the president, who referred her matter to the "Senate Committee," which reviewed the matter and academic misconduct had occurred and Pugel was dismissed from the university.

Pugel then sued the university, alleging (among other things) that the university did not afford her due process in its dismissal proceeding, because (1) it did not credit the testimony of her physician that she could not have been guilty of academic misconduct because of her ADHD, and (2) one panel member had not been present for that testimony.

The federal district court dismissed her complaint and Pugel appealed to the federal appeals court.

The federal Seventh Circuit Court of Appeals affirmed the holding of the district court. The university wins; it did provide sufficient due process.

The first question for the court was whether the university was even obligated to provide due process at all. Generally speaking, the government must provide due process only when it is depriving someone of a property interest. The court here noted, "It is an open question in this circuit as to whether a college or university student has a property interest in enrollment that is protected by the Due Process Clause." Nonetheless, the court assumed that Pugel did have a protected interest, and therefore was entitled to due process.

Did she get it? Yes.

First, her claim that the university did not credit the testimony of her physician fails. "Due process did not entitle Ms. Pugel to a favorable result based on this testimony, only to a meaningful opportunity to present it." She had that.

Second, the absence of one panel member from a portion of the testimony did not invalidate the meaningfulness of the hearing. Granted, the court said, that panel member's absence may have been a violation of university policy, "but a violation of state law is not necessarily a violation of due process." Three panel members were present throughout, and the partial absence of one does not amount to a due process violation.

What an incredible expenditure of time and resources! Surely, an alternative dispute resolution program could reach an equitable conclusion of a situation like Ms. Pugel's in a more time- and resource-efficient way. The difficulty is devising a program that meets the requirements of due process.

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