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AGLO 1970 No. 120 - September 23, 1970
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                              September 23, 1970
 
 
 
Honorable Elmer C. Huntley
State Senator, Ninth District
Thornton, Washington 99176
                                                                                                             Cite as:  AGLO 1970 No. 120
 
 
Dear Senator Huntley:
 
            By letter previously acknowledged you have requested an opinion of this office as to the constitutionality of a certain proposed bill relating to student and faculty conduct and discipline at our various state institutions of higher education.
 
            The bill which you have submitted to us consists of a total of 24 sections, the last two of which simply contain standard "severability" and "emergency" clauses, respectively.  The remainder of the bill may be briefly summarized as follows:
 
            Section 1: A declaration of legislative purpose;
 
            Section 2: Definitions of certain terms such as "college and universities," "students," "faculty," etc., which identify the institutions and persons who would be subject to the bill if it were to be enacted;
 
            Section 3: A provision relating to the conduct of students and the grounds for their dismissal from college, reading as follows:
 
            "The application for admission to any college or university covered by this act shall inform the student that a violation of the following standards of conduct shall be grounds for immediate dismissal from the college or university:
 
            "(1) Plagiarism, cheating, or knowingly furnishing false information to the college or university or other similar forms of dishonesty in college or university related affairs.
 
            "(2) Forgery, alteration, destruction or misuse of college or university documents, records, or identification.
 
            "(3) Obstruction or disruption of teaching, research, administration, disciplinary procedures, or other college or university activities, including its public service functions, or of other authorized activities on college or university premises.
 
             [[Orig. Op. Page 2]]
            "(4) Physical abuse of any person on college or university owned or controlled property or at college or university sponsored or supervised functions, or conduct which threatens or endangers the health or safety of any such person.
 
            "(5) Theft of or damage to property of the college or university or of a member of the college or university community or campus visitor.
 
            "(6) Unauthorized use of or entry to college or university facilities.
 
            "(7) Use, possession, distribution, or being under the influence of narcotics or drugs, except as permitted by law, while on college or university owned or controlled property or at college or university sponsored or supervised activities.
 
            "(8) Disorderly conduct or lewd, indecent, or obscene conduct or expression on college or university owned or controlled property or at college or university sponsored or supervised functions.
 
            "(9) Possession, while on college or university owned or controlled property or at college or university sponsored or supervised activities, of any weapons such as, but not limited to, rifles, shotguns, ammunition, handguns and air guns, including explosives such as firecrackers, etc.
 
            "(10) Failure to pay promptly all college or university bills, accounts, and other college or university financial obligations when due.
 
            "(11) Gambling on college or university owned or controlled property.
 
            "(12) Groups of students gathering on or adjacent to the campus in a manner which causes damage to public or private property, causes injuries to persons, or interferes with the orderly functioning of the college or university or the normal flow of traffic.
 
            "(13) Arrest for violation of local, state, or federal law when it appears that the student has  [[Orig. Op. Page 3]] acted in a way which adversely affects or seriously interferes with the college's or university's normal educational function, or which injures or endangers the welfare of any member of the college or university community.
 
            "(14) Possession or use of alcoholic beverages on college or university owned or controlled property, except as allowed by law.
 
            "(15) Violation of properly constituted rules and regulations governing the use of motor vehicles on college or university owned or controlled property.
 
            "(16) Refusal to respond to a request to report to a college or university administrative office.
 
            "(17) Failure to comply with directions of college or university officials acting in the performance of their duties.
 
            "(18) Violation of written college or university policies and regulations as stipulated herein or as promulgated and announced by authorized personnel.
 
            "(19) Inciting other students to violate written college or university policies and regulations as promulgated and announced by authorized personnel.
 
            "The student shall sign a statement and acknowledge that he has been informed and understands that he is subject to dismissal if he violates the standards of conduct set forth herein.  Any student dismissed for a violation of this act shall be ineligible to reenter any state college or university covered by this act for a period of ten months."  (Emphasis supplied.)
 
            Section 4: The following provisions with respect to the conduct of faculty members:
 
            "A violation of the following standards of conduct shall constitute unprofessional conduct on the part of a faculty member and shall subject such faculty member to disciplinary action as provided for in this act:
 
             [[Orig. Op. Page 4]]
            "(1) Incompetence in academic affairs.
 
            "(2) Neglect of duty which shall include but not be limited to the unauthorized dismissal of regularly scheduled classes.
 
            "(3) Physical or mental incapacity.
 
            "(4) Dishonesty or immorality.
 
            "(5) Arrest for a violation of local, state or federal law.
 
            "(6) Failure to comply with either the directions, written policies or regulations promulgated and announced by college and university administrators.
 
            "(7) Inciting students or other faculty members to violate college or university policies."
 
            Section 5:  A requirement that all faculty members submit complete outlines for the courses which they are scheduled to teach ‑ subject to a statutory provision that "Failure to follow the outline shall be grounds for disciplinary proceedings under this act."
 
            Section 6: A provision relating to the contracts of all faculty members ‑ reading as follows:
 
            "All faculty members at any college or university covered by this act shall have included in their respective contracts the provisions of sections 4 and 5 of this act.  Any violation of such contract shall be cause for suspension and dismissal as provided herein."
 
            Sections 7 and 8: Procedures for the establishment of a board at each college or university ". . . to enforce the provisions of sections 4 through 6 of this act.  . . ." ‑ i.e., those sections which deal with faculty conduct and discipline only.
 
            Section 9: The following provision with respect to the method for initiating charges of "unprofessional conduct" against any faculty member:
 
            "Any administrator, faculty member or elected official, including senators and representatives, may submit a written complaint to the board charging any faculty member regardless of tenure, with unprofessional conduct,  [[Orig. Op. Page 5]] specifying the grounds therefor.  If the board determines that such complaint merits consideration, or if the board shall have reason to believe, without a formal complaint, that any faculty member has been guilty of unprofessional conduct, the board shall designate three members to serve as a committee to hear and report upon such charges.  Upon filing of the complaint the pay of the accused faculty member shall be suspended until a final determination is made by the board."  (Emphasis supplied.)
 
            Sections 10-17: Details regarding the procedures to be followed after the pay of the accused faculty member has been suspended, as provided for in § 9, supra, for the purpose of determining whether the accused faculty member is "guilty" of the charges set forth in the complaint;
 
            Sections 18-19: Provisions under which the accused faculty member, if found "guilty," would then be either reprimanded, suspended, or dismissed ‑ and if suspended or dismissed would thereafter be prohibited from ". . . teaching in any college or university covered by this act in accordance with the terms and conditions imposed by the board. . .";
 
            Section 20: A statement that every administrator at a college or university covered by the bill should, himself, be subject to immediate dismissal for any failure ". . . to enforce the provisions of this act or any other law of this state . . .";
 
            Section 21: A provision for the removal of any members of a university or college board of regents or board of trustees who fail ". . . to enforce this act or any other law of this state . . .";
 
            Section 22: A requirement that all rules and regulations promulgated under the act be filed as provided for in the state administrative procedures act.
 
            In requesting our review of this bill, you have specifically asked for our opinion as to whether it meets constitutional requirements as to due process of law, as guaranteed by so much of Amendment 14 of the United States Constitution as provides that no state shall
 
            ". . . deprive any person of life, liberty, or property without due process of law . . ."
 
            Due process of law as a concept has two aspects: procedural and substantive.  The first of these is that aspect  [[Orig. Op. Page 6]] of due process which relates to the requisite characteristics of a proceeding by which a person is deprived of life, liberty or property.  On the other hand, substantive due process goes to the reasonableness or arbitrariness of the reasons invoked by the state for its deprivation of the person's life, liberty or property.
 
                                                                     ANALYSIS
 
            It is our opinion, for essentially the same reasons as were expressed in our opinion dated March 3, 1969, to State Representative Marjorie Lynch (copy enclosed) that the bill which you have asked us to review would violate the requirements of procedural due process, as above described, and would, therefore, be unconstitutional.  In addition, we also believe that at least in certain respects, this bill in its present form would transgress the requirements of substantive due process.
 
            Procedural Due Process:
 
            Procedural due process guarantees a person at least some notice of the proceeding against him, and such an opportunity to defend himself in the proceeding as is adequate to safeguard fundamental fairness.  This latter element in the guaranty of procedural due process has been summarized as follows:
 
            "The opportunity to be heard has been required to be adequate, fair, full, or reasonable.  The hearing or defense must be before a competent, as well as before a just, equitable and fair, and impartial court or tribunal, and before trial, and judgment or decree.  Such hearing has been required to be fair, . . . impartial, . . . full. . . and complete, or on the merits.  There must be an orderly proceeding which is adapted, or appropriate, to the nature of the case, adequate to safeguard the right for which the constitutional protection is invoked, uniform and regular, and in accordance with the law and with established rules which do not violate fundamental rights.  Due process of law implies the right to contradict by proof every material fact which bears on the question of right involved.  . . ."  16A C.J.S. § 569 (4), pp. 575-77.
 
            In our opinion to Representative Lynch we concluded that the bill which was then before us, House Bill 234 (then being considered by the 1969 legislature) would violate the requirements of procedural due process (as above described) because of provisions therein calling for the "immediate" expulsion or dismissal of any student, faculty member or other  [[Orig. Op. Page 7]] university or college employee who was merely accused of engaging in any of the acts described by the bill as constituting grounds for expulsion or dismissal (irrespective of which of the several specified grounds was being invoked) ‑ without any sort of a hearing until after the accused individual was "on the outside looking in" so to speak.  Alluding to this procedure, we said:
 
            "The thrust of a challenge to the procedure would inevitably focus on the fact that a hearing is not provided prior to the explusion [[expulsion]]or dismissal ‑ irrespective of the nature of the alleged conduct that resulted in this action.  Where there is a clear danger of further disruptive conduct, an alleged student offender may be suspended pending a hearing.  Baker v. Hardway, 283 F.Supp. 228 (1968).  However, House Bill 234 requires automatic explusion [[expulsion]]‑ with a right of appeal within thirty days ‑ against any and all persons ‑ even those who might be mere 'technical' violators in that they 'held themselves out as' or in some way 'aided, abetted or encouraged' an activity which is determined to interfere with the 'normal educational process.'"
 
            To the extent that the bill presently under consideration deals with student conduct and "immediate" dismissal ‑ i.e., § 3, supra, ‑ it appears to us that this section would also violate the principles of procedural due process for essentially the same reasons as were expressed in detail in this previous opinion.  We do not believe that the inclusion in § 3 of a provision under which a student applying for admission to a college or university would be required to
 
            ". . . sign a statement and acknowledge that he has been informed and understands that he is subject to dismissal if he violates the standards of conduct set forth herein.  . . ."
 
            would in any way "save" the constitutionality of this section or render it materially distinguishable, as to procedural due process, from the provisions of House Bill 234 as they were considered and commented upon in that opinion.  See, Soglin v. Kauffman, 295 F.Supp. 978 (U.S. D.C. W.D. Wisc. 1968), affirmed 418 F.2d 163, (7th Cir. 1969), wherein the court, at page 990, said:
 
            ". . .  It should be sufficient to observe that many courts have now concluded that whether the opportunity to attend a state institution of higher learning is viewed as a right or as a privilege, it may not be conditioned on the  [[Orig. Op. Page 8]] student's acceptance of a regime in which procedural due process is abdicated . . . or in which substantive rules flatly restricting free expression are enforced.  . . .  Thus, it cannot presently be contended that in order to enjoy the 'privilege' of higher education, one may be obliged to consent that he may be expelled without specification of charges, notice, or hearing, or to consent to remain silent on the political and social issues of his time.  . . ."  (Emphasis supplied.)1/
 
             Moreover, in one respect, § 3 of the present bill, supra, is even more patently and obviously violative of procedural due process than was House Bill 234.  That bill, at least, contained some provisions and procedures for a hearing ‑ albeit a hearing after the "immediate" expulsion or suspension of the accused individual had taken place ‑ on the question of whether the charges made against him were factually substantiated; however, nowhere in the present bill do we find any notice or hearing provisions whatsoever with respect to the dismissal of students for conduct alleged to be in violation of the so-called "standards of conduct" which are listed in the various subsections of § 3.  Yet as we have just seen, it is basic that procedural due process guarantees a person at least notice of the proceedings against him, and such an opportunity to defend himself in such proceedings as is adequate to safeguard fundamental fairness.  See, 16A C.J.S., Constitutional Law, § 569 (4), supra.
 
            Turning, next, to the portions of the present bill dealing with the conduct and discipline of faculty members, we are particularly concerned from a procedural due process standpoint with § 9, supra, under which
 
             [[Orig. Op. Page 9]]
            "Any administrator, faculty member or elected official, including senators and representatives, may submit a written complaint to the board charging any faculty member regardless of tenure, with unprofessional conduct . . ."
 
            upon the mere filing of which
 
            ". . . the pay of the accused faculty member shall be suspended until a final determination is made by the board."
 
            Although § 6 of the bill, supra, would purport to make the grounds for disciplinary action against a faculty member which are set forth in §§ 4 and 5 of the bill a part of his employment contract, we doubt that this device would be held by the courts to be sufficient to overcome even such substantive due process objections as might be made to at least certain of these grounds.  See, Keyishian v. Board of Regents of New York, 385 U.S. 589, 17 L.Ed.2d 629, 87 S.Ct. 675 (1967), where the Supreme Court of the United States held that public employment, including academic employment, may not be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action.
 
            But even if the provisions of § 6 could be invoked for this purpose, no mention is made therein of the procedures for initiating a complaint against a faculty member which are set forth in § 9, supra; and accordingly, no contention could possibly be made that an accused faculty member was contractually ‑ and therefore, constitutionally ‑ bound to undergo the obvious denial of procedural due process which an application of the provisions of § 9 would involve.  Under this section ‑ to cite but one perhaps rather extreme but nevertheless authorized example for illustrative purposes ‑ it would be possible for any "elected official" ‑ e.g., in addition to a state senator or representative (as specifically enumerated in this section), a county clerk, city councilman, or even a sewer district commissioner ‑ by the simple act of filing a complaint charging a faculty member with the mere arrest (not conviction) of a local traffic law, to cause the accused faculty member to be summarily dropped from the college payroll with no right to return to compensated employment even if found innocent in court of the traffic charge, except after a prolonged administrative hearing before the board of the particular college or university having jurisdiction over the complaint.
 
             [[Orig. Op. Page 10]]
            Therefore, in summary, we would regard the procedures set forth in § 9 of the bill as very definitely being unconstitutional on procedural due process grounds ‑ for the same basic reasons as concerned us above in connection with § 3 dealing with student conduct and discipline.
 
            Substantive Due Process:
 
            The second aspect of due process, substantive due process, imparts a guaranty that no person shall be deprived of his life, liberty, or property for arbitrary reasons.  This aspect of due process has been explained as follows:
 
            "To satisfy the requirements of due process of law, the legislature must have power to act on the subject matter; the power must not be exercised in an unreasonable, arbitrary, capricious, or discriminatory manner; the act involved must have a reasonable relation to a proper legislative purpose, or to a legitimate end; the means selected must have a real, . . . rational and reasonable, or substantial relation to the object sought to be attained; and the policy declared by the statute must have a real and substantial relation to such object.  If the legislation has a reasonable relation to a proper legislative function and purpose, and is not arbitrary, then the requirements of due process are satisfied, in that respect."  16A C.J.S. § 569 (5), pp. 581-83.
 
            This aspect of the due process requirement can be violated where, under some state authority, unreasonable means are utilized in order to accomplish a legitimate purpose, which means infringe upon a right guaranteed by the Constitution.  The key here is "arbitrariness" ‑ the lack of a rational relationship between the legitimate purpose to be accomplished and the means involved to accomplish it.
 


            Of course, as we did in our previous opinion to Representative Lynch, we recognize the legitimacy of the power of the legislature to act regarding the maintenance of student and faculty discipline at colleges and universities in the state of Washington ‑ within constitutional limits.  However, here as there, we are confronted with proposed legislation which, on its face, would go beyond those limits.
 
            From the standpoint of substantive due process, the present bill exceeds those limits because of the extent of its breadth and scope ‑ i.e., because it would reach well beyond those activities of either students or faculty members which could reasonably be expected to materially and substantially interfere with the  [[Orig. Op. Page 11]] requirements of appropriate control and discipline in the operation of our institutions of higher education.  Acts bearing no demonstrable relationship to this objective are included in both § 3, relating to student conduct, and § 4, relating to faculty conduct, in our judgment.
 
            Furthermore, again, the bill's imposition of immediate sanctions for any and all alleged violations of these two sections without any determination of the guilt of the alleged offender, aside from its denial of procedural due process, is also violative of substantive due process simply because of its patent arbitrariness.
 
            Therefore, in summary, based upon our analysis of this proposed legislation and the means by which it seeks to accomplish these purposes, we must conclude that if enacted in its present form it would, in all probability, be held unconstitutional by the courts on both procedural and substantive due process grounds.2/
 
             We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, also, Moore v. Student Affairs Committee of Troy State University, 284 F.Supp. 725 (U.S. D.C., M.D. Ala. 1968), in which the court, speaking of the constitutional rights of a student from the standpoint of searches and seizures under the 4th Amendment to the United States Constitution, said:
 
            ". . .  A student naturally has the right to be free of unreasonable search and seizures, and a tax-supported public college may not compel a 'waiver' of that right as a condition precedent to admission.  . . ."
 
2/In thus concluding in direct response to the specific issues which you have raised by your request, we do not mean to imply that these due process objections are necessarily the only constitutional objections which could be made to the subject bill in its present form.  However, since the scope of your request only pertains to "due process of law" we have not undertaken to review the bill, at this time, with any other specific constitutional provisions in mind.
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