The disciplinary power of a university is a force which every student has cause to fear. The exercise, or threat of exercise, of a school’s disciplinary power is felt in every area of campus life. Invocation of disciplinary sanctions against a student whose personal conduct or attitudes contravene standards dear to the school authorities has occurred in such ludicrous cases as the failure of a co-ed to be a “typical Syracuse girl.” In another case, a student was expelled because she refused to pay purported debts which she asserted were properly her husband’s obligations. As insidious as it may be to impose sanctions in such situations, it is in the area of student expression and association that the university’s disciplinary power poses its greatest potential threat to society, to the university itself and possibility to the individual student.
In a typical situation demonstrating the menace inherent in the university’s disciplinary power, a group of students planned to march in demonstration against the practice of racial segregation in southern colleges. Acknowledging the students’ right to express their views in peaceful assembly, no obstacles were posed by local police authorities. Instead, the students were told by their university’s spokesman: “My judgment is better than yours and I am substituting my judgment for yours and I say that there will be no march. Furthermore, if there is a march, anyone participating . . . will be expelled.” This incident took place not in the deep South, but in upstate New York. In another case, four students were suspended indefinitely for publishing, in an off-campus magazine, an article which, though admittedly not obscene, was found by a committee of administrative personnel to be “generally objectionable.”
On many campuses representatives of unpopular political philosophies are prohibited from addressing student groups, but the problem goes even deeper. One of the nation’s leading universities, for example, has confined the use of a course book on Soviet diplomatic policy to students enrolled in a course in which the “corrective influence” of a professor may be brought to bear. Such a prohibition carries, of course, an implicit threat of disciplinary action against violators. Further, on many occasions students have been disciplined for criticizing school authorities. Censorship techniques of various sorts are often imposed on student publications, both on campus and off.
From time to time, students have look to the courts for relief from various alleged abuses of the exercise of a university’s disciplinary power. The result has been the development of a small body of case law dealing with student-university problems. Generally this body of law fails to acknowledge or protect significant student interests. Recently, however, legal writers have begun to take note of the law of student-university conflicts and to recognize that many student interests, both substantive and procedural, merit protection from a university’s disciplinary power. This article will explore one avenue of granting such protection—that of recognizing the university as a fiduciary for its students.
Alvin L. Goldman, The University and the Liberty of Its Students--A Fiduciary Theory, 54 Ky. L.J. 643 (1966)