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A number of states have enacted campus due process laws. These laws vary by their scope and level of detail:

BROAD SCOPE:

Arizona §15-1866 (2018):

(a) The right to receive advanced written notice of the allegations.

(b) The right to review the evidence in support of the allegations.

(c) The right to confront witnesses who testify against that student.

(d) The right to present a defense.

(e) The right to call witnesses.

(f) A decision by an impartial person or panel.

(g) The right to appeal.

California

I. Doctrine of Fair Procedure:

Fair Procedure is a common law doctrine that arises from a line of decisions of the Supreme Court of California dating back to the 1880s. The Doctrine protects students from being disciplined in an arbitrary fashion if it affects their ability to obtain a degree, thereby harming their future employment prospects. In Ezekial v. Winkley, the court ruled that fair procedure exists because of an institutions’ ability to grant, deny, or withdraw “practical prerequisites to any effective employment in a chosen field.”

Fair Procedure includes the following:

  • Adequate notice of charges, including a description of the alleged offense.
  • The right to be heard:
    • Meaningful right to contest the charges, including notice of all opportunities to present a defense
    • If there is a possibility of suspension or expulsion, a formal hearing with the opportunity to question and cross-examine witnesses may be necessary.
    • Impartiality of the investigator and disciplinary panel

The level of procedural protections varies depending on the severity of the potential penalty.

II. California State University: Student Conduct Procedures, Article VI, Notice of Allegations, I

“The Notice of Allegations will include….a statement that reads as follows: A Complainant shall proceed with a Formal Complaint in good faith and a Complainant who knowingly and intentionally files a false Formal Complaint or any individual who is determined to have provided false statements or information during the investigation/appeal review shall be subject to discipline in accordance with the Student Conduct Code, applicable collective bargaining agreements, CSU policies, or legal requirements (e.g., Education Code Section 89530 et seq.). Likewise, the Respondent and witnesses are required to cooperate with the investigation including being forthright and honest during the process. The mere fact that two individuals have different recollections and one is later found to be more credible does not make the other person’s statement false. Disciplinary action against an individual for knowingly filing a false Formal Complaint or for providing a knowingly false statement will not be deemed to be Retaliation”;

Florida House Bill 233 (2021):

  • Timely and detailed notice
  • Access to all inculpatory and exculpatory information
  • List of witnesses
  • Presumption of innocence
  • Impartial hearing officer
  • Right to remain silent
  • Right of the accused to present evidence and witnesses
  • Active assistance of an adviser, who has the right to present evidence and question witnesses
  • Right to appeal
  • Accurate and complete record of the proceedings

Kentucky HB 290 (2022):

  • Students subject to campus disciplinary hearings shall be entitled to:
    • the express presumption of innocence;
    • timely written notice of charges, and specific details about the facts giving rise to them;
    • the right to be present and participate meaningfully in any disciplinary hearing;
    • the right to the active assistance of an attorney or advisor during all stages of the campus disciplinary process;
    • the right to cross-examination of adverse parties and witnesses;
    • reasonable, continuous access to the administrative file and evidence in the institution’s possession;
    • impartiality from the hearing panel, including a prohibition against an investigator also serving on the hearing panel; and
    • the right to appeal.
  • Students are provided a cause of action to challenge a final decision in state court.

Louisiana Student Due Process and Protection Act (2022):

The law provides the following due process protections for students attending public colleges and universities;

  1. Right to be informed of their rights.
  2. Right to receive notice of the alleged violation.
  3. Right to be informed of the evidence the institution used to make the charge.
  4. Presumption of innocence.
  5. Access to an administrative file that contains all non-privileged documents pertaining to the allegation.
  6. Elimination of conflicts of interest among counselors, investigators, institutional prosecutor, and adjudicators.
  7. Right to appeal.
  8. Right to legal counsel.
  9. Right to examine and cross-examine witnesses.
  10. Private right of action against the institution to recover actual damages.

Maryland Senate Bill 607 (2019):

The disciplinary proceedings provisions required under paragraph (1) of this subsection shall include a description of the rights of a student who alleges a violation of or a student who responds to an allegation of a violation of the institution’s sexual assault policy, including:

(i) Treatment with dignity, respect, and sensitivity by officials of the institution of higher education during all phases of
the disciplinary proceedings;
(ii) A fair and impartial investigation;
(iii) Disciplinary proceedings and resolutions that are prompt and equitable and provide an opportunity for the alleged
victim and the alleged violator to be heard;
(iv) Timely written notice of:

1. The reported violation, including the date, time, and location of the alleged violation, and the range of potential
sanctions associated with the alleged violation;
2. The student’s rights and responsibilities under the sexual assault policy and information regarding other civil and
criminal options;
3. The date, time, and location of each hearing, meeting, or interview that the student is required or permitted to attend;
4. A final determination made by the adjudicating official or body regarding whether a sexual assault policy violation
occurred and the basis for the determination;
5. Any sanction imposed; and
6. The student’s rights to appeal and a description of the appeal process;

(v) Participation in the disciplinary proceedings, including:

1. Access to the case file and evidence regarding the incident obtained by the institution of higher education during
the investigation or considered by the adjudicating official or body, with personally identifiable or other information
redacted as required by applicable law;
2. Offering testimony at a hearing or, if the institution’s process does not include a hearing, to the adjudicating official;
3. Submitting evidence, witness lists, and suggested specific questions to be posed to the other student involved in the
disciplinary proceedings by investigators or the adjudicating official or body;
4. Providing and reviewing testimony electronically or in a way in which the students are not required to be in the
physical presence of the other;
5. Reviewing and providing written responses to reports and proposed findings; and
6. Appealing a determination or a sanction;

(vi) Assistance by a licensed attorney, an advocate supervised by an attorney, or a trained advocate throughout the
disciplinary proceedings, including by the attorney or advocate’s:

1. Attendance at hearings, meetings, and interviews with the student;
2. Private consultations with the student during hearings, meetings, and interviews, except during questioning of the
student at a hearing; and
3. Assistance with the student’s exercise of any right during the disciplinary proceedings;

Utah House Bill 414 (2024):

Protections for students and student organizations accused of campus misconduct include:

  • The right to the active assistance of an attorney or non-attorney advocate, who may make opening and closing statements during a disciplinary hearing, examine and cross-examine witnesses, introduce relevant evidence, and provide support and advice;
  • An express presumption of innocence that remains until either the student admits responsibility or the institution proves every element of an alleged violation;
  • Advance notice of the charges; and
  • An express prohibition on conflicts of interest for investigators and the comingling of the judge and investigator roles, precluding the use of the problematic “single investigator model.”

NARROW SCOPE:

Arkansas Code § 6-60-109 (2015):

  • “A student enrolled at a state-supported institution of higher education who has received a suspension of ten (10) or more days or expulsion may request a disciplinary appeal proceeding and choose to be represented at the student’s expense by a licensed attorney or, if the student prefers, a non-attorney advocate who, in either case, may fully participate during the disciplinary appeal proceeding used by the state-supported institution of higher education except as provided under subdivision (b)(2) of this section.”

Georgia House Bill 1 (2022):

  • Defines “student-on-student harassment” to be “unwelcome conduct or expressive activity directed at a student that is so severe, pervasive, and objectively offensive that a student is effectively denied equal access to educational opportunities or benefits provided by the public institution of higher education.”

New York Student’s Bill of Rights:

  • “4. Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;”

North Carolina § 116-40.11:

  • “Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented, at the student’s expense, by a licensed attorney or nonattorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.”

North Dakota 15-10-56:

  • Right to legal counsel: “Any student enrolled at an institution under the control of the state board of higher education has the right to be represented, at the student’s expense, by the student’s choice of either an attorney or a nonattorney advocate, who may fully participate during any disciplinary proceeding or during any other procedure adopted and used by that institution to address an alleged violation of the institution’s rules or policies.”
  • Right to appeal: “Any student who is suspended or expelled from an institution under the control of the state board of higher education for a violation of the rules or policies of that institution and any student organization that is found to be in violation of the rules or policies of that institution must be afforded an opportunity to appeal the institution’s initial decision to an institutional administrator or body that did not make the initial decision for a period of one year after receiving final notice of the institution’s decision.”

Ohio SB 135, Sec. 3345.241 (2022):

  • Requires a public institution of higher education to “provide a student who is subject to a disciplinary action by the university with a notice of the disciplinary action, the reasons for that disciplinary action, and the student’s right to appeal the disciplinary action under this section. If the student elects to appeal the disciplinary action, the state university shall afford the student with a fair and impartial hearing within a reasonable time thereafter under regular procedures of the state university.”