Are Schools Abusing Interim Suspensions?

Micah Kamrass, Manley Burke, mkamrass@manleyburke.com

Lately, we at Fraternal Law Partners have noticed a troubling trend.  Public colleges and universities seem increasingly willing to impose interim suspensions on fraternities and sororities without providing any justification or a timeframe for an investigation. This raises the question of how long a university can impose interim sanctions on a student group before it violates the chapter’s rights to freedom of association and due process.

As a hypothetical, suppose that the Alpha Alpha Alpha fraternity chapter at Public University receives a cease and desist letter from the university’s Office of Judicial Affairs. The letter reads as follows:

“The Office of Judicial Affairs received an anonymous complaint that the Alpha Alpha Alpha Fraternity may have violated a university rule. As a result, our office will begin an investigation into the matter. Until our investigation is complete, the Alpha Alpha Alpha Chapter is hereby ordered to cease and desist from conducting any and all chapter activities including but not limited to meetings, social events, philanthropy events, educational programming, and recruitment.”

Aside from this letter, the university refuses to provide the chapter with any information from the complaint, any explanation of what university rules the chapter is suspected of violating, or any timeline on how the investigation will unfold. The chapter plans to elect new officers next week, and has also scheduled its major philanthropy event for just a few weeks later. Neither of these would be allowed to take place under the University’s cease and desist letter.

This hypothetical fact pattern sets up a conflict between competing rights of the chapter and of the university. There is no dispute that fraternity and sorority chapters have the right to freedom of association under the First Amendment.¹  There is also no dispute that public institutions cannot deprive chapters of their constitutional rights without providing due process.²  Furthermore, it is undisputed that educational institutions have a right to impose interim suspensions prior to a hearing.³

The seminal case on due process in the educational disciplinary context is Goss v. Lopez, a U.S. Supreme Court case from 1975.⁴  While Goss involved a K-12 institution, courts have applied it to the higher education setting numerous times over the last four decades.⁵  The Goss Court held:

“[w]e do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspensions have interests qualifying for protection of the Due Process Clause, and due process requires . . . that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”⁶

The Court then clarified that “[w]e hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is . . . [R]equiring effective notice and [an] informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action.”⁷  Courts have interpreted Goss to mean “there are two basic due process requirements: (1) notice, and (2) an opportunity to be heard.⁸

Returning to the hypothetical example above, it is debatable whether the university is complying with the notice requirement of Goss. While the university did send a letter to the chapter saying it is suspected of violating university rules, it never clarified which rule. Failure to provide information in the notice makes it incredibly difficult for the chapter to present their side of the story.

However, it is indisputable that the university has failed to comply with the requirement that the group receive the opportunity to be heard. The university has refused the chapter’s request for an explanation of the evidence against them, and has not presented the chapter with an opportunity to present their side of the story within a reasonable timeframe. This constitutes a clear deprivation of due process. If the university forces the chapter to cancel its previously scheduled elections and philanthropy events, it has suffered irreparable injury. As the Supreme Court has held, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”⁹

We will continue to monitor how universities are imposing interim suspensions on student organizations. Ultimately, if universities impose these sanctions while failing to comply with the requirements of notice and the opportunity to be heard, they should be held accountable in civil suits for the deprivation of rights under 42 U.S. Code § 1983, where the chapter can be awarded declaratory relief and attorneys’ fees.

1 See Pi Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 229 F.3d 435, 443–445 (3d Cir. 2000) (“The Supreme Court has recognized a First Amendment right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. Thus,[t]he First Amendment’s protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.  [W]e are not holding that fraternities per se do not engage in constitutionally protected expressive association. It is entirely possible that a fraternity (or sorority, or similar group) could make out a successful expressive association claim.”

2 See, e.g., Matthews v. Harney Cnty., Or., School Dist. No. 4, 819 F.2d 889, 891 (9th Cir. 1987) (“The Fourteenth Amendment’s guarantee of due process applies when a constitutionally protected liberty or property interest is at stake.”)

3 Goss v. Lopez, 419 U.S. 565, 582–83 (1975) (“Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and hearing should follow as soon as practicable.”).

4 Id.

5 See, e.g., Hill v. Board of Trustees of Michigan State University, 182 F. Supp. 2d 621 (W.D. Mich. 2001).

6 Goss, 419 U.S. at 581 (emphasis added).

7 Id. at 582–83.

8 Flaim v. Medical College of Ohio, 418 F.3d 629, 634 (6th Cir. 2005).

9 Elrod v. Burns, 427 U.S. 347, 373 (1976).