In its most basic sense, due process refers to the process that must be followed before an official action can be taken. If a college fails to observe due process, the student may have grounds to appeal.

College Students and Due Process Rights

The Majority of college students in New York have due process rights when facing school discipline. What due process encompasses depends on the larger situation at play. Public university students have the constitutional due process protections of the 14^th Amendment. Private university students do not have the same Constitutional due process rights. However, it is not as straightforward as public schools provide due process, and private schools don’t.

Practically speaking, a particular student’s due process rights may look very different depending on:

• Whether the school is private or public;
• What kind of proceeding the student is subjected to; and
• What the school’s internal policies include.

Different contexts require a different set of procedural requirements that the school must follow when disciplining students. When figuring out what rights are available to a student in their particular situation, it is helpful to understand some of the sources of due process: the rights they provide and when they apply.

Sources of College Students’ Due Process Rights

The Fourteenth Amendment & Constitutional Due Process Rights

The Due Process Clause of the U.S. Constitution’s Fourteenth Amendment places a Constitutional requirement on states and state actors to provide due process before depriving an individual of life, liberty, or property.

Public college students have Constitutional due process rights when facing severe discipline such as suspension. Consequently, public colleges and universities are Constitutionally obligated to provide due process when disciplining students. This is because (1) public colleges—SUNY, CUNY, and community colleges—qualify as state actors; and (2) Students have a protected property and/or liberty interest in their education and reputation.

In general, public college students have the following Constitutional due process rights when facing severe discipline:

• The right to notice of the charges
• A description of the evidence against them
• The right to be heard by an impartial, unbiased decision maker

Additional due process may be available depending on other factors, like the nature of the charge and the school’s own policies.

College Internal Policies and Contractual Due Process Rights

Both public and private college students have the right to due process as outlined in their school’s own policies and procedures. If a college’s Student Code of Conduct specifies a right to a hearing, the school must apply their policies fairly and consistently to all students.

A code of conduct is a contract between school and student. If a college student is not afforded the due process laid out in their school’s code of conduct, they can sue their school for breach of contract through an Article 78 proceeding. Should a court find that the student’s punishment was arbitrary and capricious, the punishment may be overturned and the student’s record cleared.

Education Law and Statutory Due Process Rights

Both private and public colleges must provide due process in situations involving sexual misconduct. These statutory due process obligations come from both federal law (Title IX) and New York State law (NYS Education Law Article 129-B).

Title IX is a federal law that applies to colleges that accept federal funding, such as student federal financial aid. Virtually all colleges and universities in New York accept some form of federal funding; they’re required to follow Title IX’s procedures when investigating sexual misconduct, including due process for accused students. Title IX investigations may run separately from disciplinary proceedings.

Enough is Enough is a New York Education Law (Article 129-B) that applies to all colleges in New York regardless of whether they accept federal funding. It establishes standards for how schools’ codes of conduct address sexual assault, dating violence, domestic violence, and stalking. Due process for accused students is among these requirements.

Note: It is possible for a student to go through (1) a Title IX investigation, (2) a school disciplinary proceeding, and (3) criminal charges—all for the same alleged act.

We cover the due process required under Title IX in depth in our article: “The Difference Between Title IX Investigations and School Discipline Proceedings in New York State.”

First steps when a college student is accused of misconduct

1. Pause Before Reacting. This is paramount. Do not respond emotionally or act without a clear strategy. Adding to the evidentiary record at this point can harm the outcome. It is important to preserve future options; the wrong response can limit those options.
2. Review the student code of conduct and school policies for information on the process for that specific violation. Deadlines may limit how long a student has to respond before forfeiting the ability to do so.
3. Reach out for support as soon as possible. The support options available may differ between situations. Title IX gives accused students the right to an advisor (like an attorney) in the hearing, for example. But know that any student has the right to consult an attorney to discuss their options and review strategy. This is especially critical for students facing parallel proceedings, like Title IX or criminal investigations in addition to the student disciplinary process.
4. Fight for the best outcome, regardless of how “small” the violation may seem. A small violation may not result in formal discipline, but it may be used to justify even greater consequences for a second “small” violation down the line. Seemingly inconsequential violations can become very, very consequential violations.

College Students Have Due Process Rights in New York State

Both private and public institutions of higher education are obligated to provide their students with due process. The specifics of a school’s obligations to an accused student varies, but this fact is universal: schools can get it wrong. It may be the result of unintended oversight, a lack of resources, or bias. Whatever the reason, not every student receives the full due process to which they are entitled.

Consider consulting an education attorney to hold the school accountable. In some cases, legal counsel may deescalate the situation. Having an attorney in the room can open up alternative paths to resolution, while ensuring the student’s rights are respected and their investment protected.

Navigating school disciplinary proceedings can be overwhelming. Tully Rinckey’s education attorneys will handle your matter with the attention and tact it deserves. If you have additional questions about your rights as a student and due process in education, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Greg T. Rinckey is one of Tully Rinckey PLLC’s two founding partners. He worked with Founding Partner and fellow Hofstra University alum Mathew B. Tully in 2004 to build the firm from the ground up into the coast-to-coast, full-service powerhouse that it is today. As Founding Partner, Greg collaborates with Mat in all areas of strategic planning and law practice management to develop and deploy innovative business solutions that continue to grow the firm.

Evangelos Dentes is an associate attorney in Tully Rinckey PLLC’s Syracuse office, where he supports New York students and parents with their education matters, as well as federal employees. He graduated from the Syracuse University College of Law in 2023, where he interned with several public and private entities: with the City of Syracuse, handling Zoning Matters and Civil litigation against police officers; a boutique law firm in Washington, D.C., where he handled ITAR-related matters and civil litigation; and, an international Contract Research Organization, where he conducted market research and contractual drafting.