By Joseph Storch, Principal Investigator, SCI, and
Associate Counsel, Office of General Counsel, State University of New York
Sixty years ago, on February 25, 1960, the sit-ins that formed the basis of Dixon v. Alabama began in a Montgomery Courthouse. More than a year later, the Fifth Circuit Court of Appeals (traditionally a very conservative court) issued a seminal decision on due process on public college campuses. In Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961), the court reviewed a decision of a lower court and issued a ruling that went far beyond St. John Dixon and his fellow student plaintiffs to require notice and an opportunity to be heard in disciplinary actions by a public college campus that could lead to expulsion.
Nearly six decades hence, much of the due process we currently see on our campuses is rooted in the same concepts and requirements. In some ways, the more things change, the more they stay the same. Although student conduct respondents on public and private colleges receive a level of due process unimaginable all those years ago, many of the underlying issues for which Dixon and his cohort protested are still with us today. Campuses should take the anniversary of the Dixon sit-in as an opportunity to review conduct policies and handbooks to ensure that the policies are clear, not subject to inordinate flexibility, and implemented evenly.
St. John Dixon, a native of California, was a student at Alabama State College, a segregated teachers’ college in Montgomery, Alabama. The “violation” alleged against him was that Dixon, an African American student in good standing at the college, had sat at a “whites-only” lunch counter in the Montgomery County Courthouse. Five other plaintiffs in similar circumstances joined him in the suit. The six plaintiffs were among a group of twenty-nine African-American students who lawfully sought service at the publicly-owned grill in the courthouse on February 25, 1960. Rather than serve the students, the grill closed down, but the students refused to leave. Police were called and removed the students to the hallway. The protesters then left peacefully.
According to the trial court, 186 F.Supp. 945 (1960), Governor John Patterson called the college president, described the protest, and stated, “if he were in the president’s position he would consider expulsion and/or other appropriate disciplinary action.” The following day, some, but not all, of the plaintiffs joined a mass attendance at a trial of a fellow student and, after the trial, marched two miles from the courthouse to the campus. On February 27, some but not all of the plaintiffs joined mass demonstrations in Montgomery and Tuskegee and on March 1, 600 students, including some but not all of the plaintiffs, sang hymns and spoke at the State Capitol. No violence or destruction was reported from any of these activities; they were peaceful marches, sit-ins, or other protests.
The State Board of Education, under pressure from the Governor’s Office, “investigated,” and on March 2, the six plaintiffs (and others) were identified as twenty-nine “ringleaders” of the “disruptions.” The State Education Board quickly voted unanimously to expel nine students (including the six plaintiffs) and place the other twenty on probation. No testimony was taken from the students or neutral witnesses; the students were not even made aware of the charges. On March 4 and 5, each student was notified that they were expelled with no option for a hearing or process.
The trial-level court upheld the actions of the board, finding such a decision and process proper in consideration of the “discord, disorder, disturbance, and destruction” caused by the students’ peaceful protests, and finding all actions of the state to be in good faith. The Fifth Circuit reversed the decision. The court cited the facts that the “misconduct” the students were charged with was never even specified or detailed, the notice of expulsion included no grounds for discipline (beyond the vague “this problem of Alabama State College”), and that some of the disciplined students did not even attend all of the demonstrations (outside of the Montgomery Courthouse request for lunch service, which was guaranteed to them by law). Displaying their disorganization and lack of process, those who voted to expel gave very slight, and quite differing, reasoning for so voting in testimony.
The students had no formal charges, no notice, and no hearing or other opportunity to respond. While Alabama state law did not require due process when students were expelled from a college, the Fifth Circuit noted that Alabama State College had traditionally given notice and an opportunity to be heard before suspending or expelling students. The president testified that in a disciplinary case they normally “would have conference with the student and notify him that he was being asked to withdraw, and we would indicate why he was being asked to withdraw. That would be applicable to academic reasons, academic deficiency, as well as to any conduct difficulty.” He also testified that at the hearing the student would have a right to offer a defense. In other words, the policy or practice of Alabama State College was to give students due process, but they just didn’t do so here.
The Fifth Circuit’s ruling required that due process rights likewise be afforded to these student plaintiffs. Referencing the right to due process whenever a government entity seeks to injure an individual (a near constant source of litigation during that era), the court required more process for injuries of a graver nature than those of a lesser nature. The court ruled that remaining at a public college once one was enrolled is a private and protected interest. Students deserved due process before such a right was removed, as their studies would be interrupted and they would have difficulty continuing at a new institution.
In the nearly years since, public (and increasingly private) colleges have provided students with notice, an opportunity to be heard, and a clear statement of the findings. What is common now was a major step forward then.
Our campuses today are engaging in continued conversations about race and equality in light of political changes, law enforcement actions, and new research. Students are demanding rights today, not tomorrow, or after a commission or study. Many of these actions are purely protected speech. These include protests, sit-ins, teach-ins, songs and protest statements similar to the ones used with great effect during Dixon’s college years. But colleges should not satisfy themselves with merely not violating free speech and due process rights as Alabama State College did.
Steps should include, at a minimum, engaging with student leaders and learning about their difficulties and challenges on campus. Doing so effectively may also require engaging the students’ trusted faculty and staff in a productive dialogue. While some student requests may not be possible, many are reasonable attempts to move the institution towards a place where all students feel comfortable learning and living. While the precise answers are often fact and institution-specific, one general common thread is that students do not want to wait for the results of study groups, committees, and blue-ribbon panels. They recognize that today’s students only have a few years at their college or university and hope to see pro-social changes before graduation. Attempts to placate protesters with the tried-and-true “let’s assign a committee to study it” may not work.
Another lesson for colleges today is the role that inconsistency in application of policies plays in due process court decisions. While it would be rare today to find a public college (or even a private college) mass-expelling a group of students in a secret meeting, offering little or no reasoning for doing so, for the sole “violation” of protected free speech, there are a number of cases each year in which a college’s disciplinary decision is overturned because the college did not precisely follow its own policies.
Most college disciplinary codes go far beyond the minimal elements of due process required by Dixon and other cases such as Goss v. Lopez, 419 U.S. 565 (1975). But in applying these rules, institutions must take care that the policies “say what they mean and mean what they say.” If a college policy promises five days to appeal, but a student is only given three, they may bring a challenge. If the policy says that attorneys are not to participate and a college lets an attorney participate in the hearing on behalf of one party, but not the other, the party whose attorney was silent may bring a challenge. Colleges should continuously review policies and procedures used in discipline to determine if certain elements are still necessary, and whether certain rights and responsibilities should be expanded, contracted or eliminated. There is no single answer as campus culture, size, and other factors lead to different decisions about appropriateness of conduct policy provisions. But when the policy rubber hits the conduct hearing road, institutions should ensure that they are closely following the policies. Courts generally do not require perfect hearings, but one or many significant deviations from a policy may lead to a finding of a due process violation.
Certain elements of a policy are more dangerous than others. Watch out for vague statements that leave significant room for interpretation (stating “day” without clearly making it business or calendar day, offering “standard rights” without a reference to a list of those rights) and for significant discretion in a single person or office. While we want staff empowered to conduct hearings in an efficient way; statements like “the Dean will decide whether a charge has met the standard on a case-by-case basis,” or “the Conduct Director will decide whether to extend a deadline for an action on a case-by-case basis” can lead to charges of unfairness or that individuals were treated differently based on protected characteristics. Whether true or not, if a college policy does afford significant discretion to one person or office, it should establish a list of factors that will be used to make the decision, so as to push back against a charge that the decision was purely arbitrary.
While Dixon was a public college case, the standards between public and private colleges have significantly merged in recent decades. Many private colleges afford students essentially the same rights as their public college peers through contract law. That is to say, most courts consider a student’s handbook to be a contract and the institution must honor all rights promised in the handbook. Further, federal and some state laws have required additional process and rights in certain cases (for example, rights required by the Violence Against Women Act amendments to the Clery Act in investigations and adjudications of sexual and interpersonal violence) that apply equally to private and public colleges. Therefore, it is equally useful for private colleges to review their policies and procedures, as well as methods for making tough decisions in close cases to determine that their policies “mean what they say and say what they mean.”
While Dixon was decided decades before today’s students were born, there are lessons in the decision that ring true for institutions today.