College Athlete Misconduct: What Process is Due? (Part 2)
Last week, we began discussing Radwan v. Manuel,[i] a case recently decided by the U.S. Circuit Court for the Second Circuit regarding discipline faced by a soccer player at the University of Connecticut, a public institution. This week’s discussion will center on the amount of process that was due to the player before discipline could be imposed.
Constitutional due process provides for an appropriate review prior to the infringement of individual rights by public entities, including public institutions of higher education.[ii] The amount of process due before a right can be interfered with depends upon whether the right is constitutionally protected, and the nature of that right. For example, those facing potential imprisonment receive more process than those who may need to pay a parking fine.
In this case, the University argued that there could be no constitutionally protected property interest in the scholarship for two reasons. First, because the student-athletes sign an agreement stating that their scholarships could be terminated if they engaged in serious misconduct, and second because nonrenewal of a scholarship does not create a protected interest. The District Court hearing this case agreed with the University of Connecticut that college athletes’ scholarships are not protected property interests.
However, during appellate review by the Second Circuit, the Court looked to whether the interest in the scholarship is protected under state law, and then at the importance of the interest to the holder of that interest (Radwan). Addressing the first inquiry, the Court found that Connecticut is an at-will employment state, therefore employees only have a reliance expectation in continued employment when there is a contract providing a fixed period of employment. While Radwan was not an employee, the Court used the same logic with regard to determining whether Radwan had a reliance interest in the scholarship: the agreement was set for a fixed duration of time (one year) subject to termination for cause. Next, the Court determined the importance of the interest by evaluating Radwan’s dependence on the scholarship. The athletic scholarship granted to Radwan, and many other student-athletes, served as the “exclusive source of funding for housing, college tuition, and books.”[iii] Radwan’s dependence weighed heavily enough for the Court to make the final determination that Radwan’s scholarship was in fact a protected property interest.
That was not the end of the inquiry, however. The Court also had to determine whether the University’s administrators were immune from the claims. Qualified immunity is available where constitutional rights may have been violated, but was not clearly established such that public officials knew what they were doing was impermissible. Because the Second Circuit had not previously clearly established that the loss of such scholarships entitled students to due process, the Court affirmed the grant of summary judgment to the University and provided qualified immunity to the University and the relevant administrators that had not known to provide such process.
Because qualified immunity was granted, the Court did not need to address what process would be due in future situations of scholarship termination. However, other courts have noted that at its most basic form, the question of what level of due process is owed when dealing with the deprivation of a protected property interest is notice of the charges, and a meaningful opportunity to be heard.
What a meaningful opportunity to be heard looks like depends on what is potentially being lost by the holder of the interest. Is the holder owed a chance to speak with the decision maker before a final determination is made, can they be represented by an attorney in the institution’s process, and do they have a right to a hearing before a neutral decision-maker with cross-examination available? The Supreme Court has provided a balancing test to potentially address this question. In Mathews v. Eldridge[iv], the Court provided three competing factors to weigh in determining the appropriate level of procedural due process: 1) The importance of the interest subject to termination to the holder, 2) the value of additional procedural protections to prevent the erroneous deprivation of that interest, and 3) the administrative burdens on the school in providing those additional protections. This balancing test has been used in the context of the disciplinary process that must be provided by public institutions of higher education before students can be subject to suspension or dismissal for misconduct. Radwan alleged that her case was handled by an internal athletics process, which may not have been based on this balancing test, instead of through the usual student disciplinary process, which at most institutions is used, challenged, and revised more regularly.
While this ruling narrowly applies to college student-athletes on scholarship in Connecticut, the reasoning may be used as a persuasive argument in other Circuits facilitating new standards for athletic disciplinary protections in similar cases. Public institutions of higher education should consider the potential constitutional implications of their current athletic disciplinary procedures in light of this new ruling.
Next week’s release of the final installment in the series on this case will address the Court’s ruling on Title IX Selective Enforcement cases and overall considerations on the ruling going forward.
[i] Release date of 11/30/2022. Decision is available for download directly from the Court’s website at the following address: https://www.ca2.uscourts.gov/decisions.html
[ii] Private institutions of higher education may also be subject to procedural requirements, usually based in contractual rights and state law.
[iii] Radwan at 57
[iv] Mathews v. Eldridge, 424 U.S. 319 (1976).