A bill in Oregon’s State Senate may threaten college students’ due process of rights. The bill fundamentally changes the relationship between public schools and state government. Senate Bill (SB) 540, would mandate public colleges and community colleges to expel any student convicted of riot. While this bill could impact students who engage in future civil disobedience, the magnitude of that impact and its approach to school policy calls its legality into question.
The bill deals explicitly with the crime of riot, a class C felony which Oregon law defines as six or more people engaging “in tumultuous or violent conduct” that creates “a grave risk of causing public alarm.” Other actions committed during a riot, such as larceny, arson, or assault, would not be addressed by SB 540. The bill would mandate expulsion procedures against all students convicted of riot after its passage. Students with existing riot convictions would be unaffected.
At present a conviction for riot, or any other legal offense, is a violation of the student code of conduct at PSU. The same is true at most other public colleges. As such, a student convicted of riot could be expelled under current university policies. Under this law, however, schools would lose their power of discretion to consider individual cases.
The bill’s sponsor, State Senator Kim Thatcher, a Republican representing the 13th district and a PSU alumnus, denies that the bill would have a negative effect on free speech. Rather, as she wrote in her statement to the Senate Committee on Education, the bill will protect student speech from “bad apples” who engage in violent behavior during otherwise peaceful protests.
Her comments deal with the issue of free speech, an issue which was largely decided when the Oregon Supreme Court ruled that the riot statute was not a violation of the First Amendment. What her arguments don’t address, though, is the challenge the bill may face in the thorny legal field of collegiate due process.
Under the Fourteenth Amendment, states are not allowed to “deprive any person of life, liberty, or property, without due process of law”. Under a series of legal decisions, starting with Goss v Lopez (1975), the Supreme Court established that public education, including college education, was a core aspect to modern life. As such, no public student can be expelled without due process of law.
This protection is at the heart of the potential legal challenge to SB 540. Currently, any given college in Oregon has procedures in place to evaluate violations of student conduct. These rules establish the rights that students have, in accordance with legal standards. These rights include the right to notice, the right to confront evidence, and the right to representation. SB 540 would supplant those procedures with a state-imposed mandate: all convictions would result in expulsions.
Proponents of the bill could argue that due process exists in the criminal conviction, and that public colleges could still hold hearings. Without the discretion currently afforded to colleges, though, these would be formalities. They could examine only whether a conviction for riot existed and was valid. A student’s life circumstances, the nature of their conviction, and their disciplinary history would all be irrelevant to the college’s decision. Meanwhile, none of those factors would play into the determination of guilt in a criminal court.
While procedure is an element of due process, there is also the aspect of fairness. This concept, known as substantive due process, asserts that liberty cannot be taken unfairly or capriciously, even if a reliable legal process is used. This principle allows courts to overturn superficially fair laws that are used to circumvent civil rights.
The bill has yet to pass, and case law in Oregon has not conclusively covered this situation. The arguments for the challenge, however, are strong. The bill would allow law enforcement to force an expulsion without considering the circumstances or interests of the student or the college. Allowing the state to deprive a right without even considering the interests behind that right is a violation of substantive due process, regardless of the procedure it did use.
Moreover, the bill chafes at another factor of substantive due process: the capacity for abuse. Arrests and convictions for the crime of riot are currently rare, even among arrests made during protests. Typically, this is because crimes draw from a common pool of punishments, and prosecutors therefore build a case based on the most clearly provable crimes. SB 540, however, would attach an exceptional punishment to a single charge among the many available.
Could law enforcement use this option maliciously when targeting students? On Feb 20., 13 people in Portland were arrested by police in riot gear for participating at a President’s Day rally. The actions prompted the Oregon chapter of the American Civil Liberties Union to ask the Portland Police to revise their response to protests, according to KGW news.
Events such as these demonstrate a confrontational attitude that currently exists between law enforcement and protesters. From a legal perspective, if a noticeable increase in riot convictions occurred following the passage of SB 540, that could be used as evidence of law enforcement using the law to arbitrarily target students.
SB 540 is still in its earliest stages. At this point, discussion of its legal challenges, or even its chance of becoming law, is speculative. As proposed, though, its enforceability, motives, and potential for abuse are all questionable. For those who choose to organize and demonstrate, awareness of their rights and the law behind them will be key to navigating an increasingly hostile climate.