Request By:
Mr. Eddie W. Morris
Director of Records and Registration
Kentucky State University
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Director of Records and Registration for Kentucky State University you have asked the Office of the Attorney General for an opinion on whether the University must provide a hearing to all students who are placed on academic probation or who are suspended for academic deficiencies.
We believe it must first be noted that there is no statute in point which will be of benefit to our consideration of this matter. In comparison, however, we recognize the provisions of KRS 164.370. As amended in 1978, this statute reads as follows:
"Each board of regents may invest the faculty or a committee of the faculty and students with the power to suspend or expel any student for disobedience to its rules, or for any other contumacy, insubordination or immoral conduct. In every case of suspension or expulsion of a student the person suspended or expelled may appeal to the board of regents. The board of regents shall prescribe the manner and the mode of procedure on appeal. The decision of the board of regents shall be final."
This statute concerns the actions of suspension or expulsion for disciplinary reasons. Consistent with contemporary case law, the statute does offer a procedure to be followed which should entail an affording of appropriate due process of law.
The situation you have presented for our consideration does not actually involve suspension or expulsion at all although the term "suspension" is used. Certainly the actions you are concerned about do not involve disciplinary problems. All in all, you are simply asking about academic probation and academic dismissal. Our response to the issues surrounding these administrative actions are governed by a recent opinion of the
United States Supreme Court in Board of Curators of the University of Missouri v. Horowitz, U.S., 55 L. Ed. 2d 124, 98 S. Ct. (March 1, 1978).
A brief background to the Horowitz case will be beneficial. Ms. Charlotte Horowitz, a medical student, was dismissed from medical school in her final year due in large part to clinical deficiencies and personal hygiene problems. She had been placed on probation and counseled with prior to the notice of dismissal. No hearing was provided to her concerning this matter. Horowitz initiated a Civil Rights Act, 42 U.S.C. § 1983, action in federal district court. The district court held for the University, relying on "the immunity accorded (educational authorities) in academic matters . . . . ," absent a showing of bad faith or arbitrary and capricious action.
On appeal to the Eighth Circuit Court of Appeals, the district court decision was reversed. The federal court of appeals directed that the University was "to provide Horowitz with a hearing before the decision-making body or bodies, at which she shall have an opportunity to rebut evidence being relied upon for her dismissal and accorded all other procedural due process rights."
Horowitz v. Board of Curators of University of Missouri, 538 F.2d 1317, 1321 (1976).
The case was then taken to the United States Supreme Court by application for certiorari which was granted. For brevity, we quote from the summary provided in the Lawyers Edition regarding the decision and reversal of the Eighth Circuit's decision, 55 L. Ed. 2d at 124-125:
"On certiorari, the United States Supreme Court reversed. In an opinion by Rehnquist, J., joined by Burger, Ch. J., and Stewart, Powell, and Stevens, JJ., and joined in part (as to holdings 1 and 3 below) by White, J., it was held that (1) assuming the existence of a liberty or property interest, the student had been awarded at least as much due process as the Fourteenth Amendment required, since she had been fully informed of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment, and since the ultimate decision to dismiss the student was careful and deliberate, (2) because the difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct called for far less stringent procedural requirements in the case of an academic dismissal, the due process clause of the Fourteenth Amendment did not require a hearing when a state medical school dismissed a student for academic cause, and (3) the Court of Appeals' judgment would be reversed without remanding as to the question whether the student had been granted substantive due process, even though the Court of Appeals had expressly failed to reach this issue, since the record supported the District Court's holdings that no showing of arbitrariness or capriciousness had been made, and that there was no evidence that the student had been in any manner evaluated differently from other students because of her sex, religion, or personal appearance, and since the record showed that the school had followed its established rules."
Several salient points need to be gleaned from the body of the Court's majority opinion. First, the Court granted certiorari "to consider what procedures must be accorded to a student at a state educational institution whose dismissal may constitute a deprivation of 'liberty' or 'property' within the meaning of the Fourteenth Amendment. " 55 L. Ed. 2d at 129. Justice Rehnquist, delivering the opinion of the Court, stated:
"We need not decide, however, whether respondent's dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we decide whether respondent's dismissal infringed any other interest constitutionally protected against deprivation without procedural due process. Assuming the existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The School fully informed respondent of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the Due Process Clause of the Fourteenth Amendment. " 55 L. Ed. 2d 131-132.
The Court made specific mention of the difference between a disciplinary suspension and an academic dismissal, citing its decision in
Goss v. Lopez, 419 U.S. 565 (1975), which involved suspensions of ten days or less of a public school student for disciplinary reasons. Justice Rehnquist stated for the Court that "this difference calls for far less stringent procedural requirements in the case of an academic dismissal." 55 L. Ed. 2d at 133.
Several other statements of Justice Rehnquist deserve mention. He stated for the Court that "academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full hearing requirement." 55 L. Ed. 2d 134. He went on to say that "under such circumstances, we decline to ignore the historic judgment of educators and thereby formalize the academic dismissal process by a hearing." 55 L. Ed. 2d at 135. Justice Rehnquist noted in conclusion that "courts are particularly ill-equipped to evaluate academic performance. The factors discussed in Part II with respect to procedural due process speak a fortiori here and warn against any such judicial intrusion into academic decisionmaking." 55 L. Ed. 2d at 136.
We are enclosing a copy of the United States Supreme Court opinion in the Horowitz case. While we believe it is clear that no hearing is required to be given to students who are placed on academic probation or who are dismissed for academic reasons, we believe careful attention must be given to the procedures actually followed by the university involved in that case and let these procedures mentioned be instructive in the consideration of your university's academic action.