Does “counseling out” students from university programs violate their constitutional rights?

Please consider the following fictional scenario: Dr. Dolores Hickey teaches psychology at a public university in Amherst, Massachusetts. At a monthly faculty meeting with her colleagues, she �staffs� students, meaning that she identifies those who appear to be having major academic issues, personal problems interfering with their educational progress, or other difficulties. Dolores, a licensed clinical psychologist, has much experience in the diagnosis and treatment of mental disorders and brings this knowledge to her classroom interactions with students. Her classes tend to be �hands-on,� with students encouraged to achieve self-awareness by sharing personal issues with the class. She regards this classroom exercise as an important aspect of the use of reflective insight in psychology, a task encouraged by some professional educators. At the most recent student staffing, Dolores discusses Wanda Moreno, a second-year master�s student and the daughter of Puerto Rican immigrants to the U.S. Wanda, according to Dolores� description, is a �C� student and has looked �overwhelmed� in class for the last four weeks. She sits silently, never participating in class discussions, and, additionally, she looks �withdrawn and depressed.� Although her class papers have been submitted on time, they are sparsely written and lack self-disclosure, a specific requirement described in the course syllabus. Wanda has declined all of Dolores�s requests for a meeting to discuss these observations, and Dolores now seriously questions Wanda�s emotional maturity and appropriateness for psychology practice. She seeks her colleagues� advice on whether Wanda should be �counseled out,� a process by which university faculty and administrators deliver a strong, personal recommendation to a student to withdraw voluntarily from their degree program. This scenario represents a classic and unfortunate example of a threatened interference with fundamental constitutional rights by a state actor under color of law. The fundamental rights involved here concern Wanda�s personal privacy and self-expression, both liberty-related privileges recognized under the First and Fourteenth Amendments. Wanda�s personality, her manner of personal expression, and her attitude toward Dolores are her own business until such time as the state actors�university faculty members and administrators�can present a compelling reason for interfering with them. A compelling reason here would need to be grounded in the university�s important public responsibilities, which include the training of competent psychologists and the maintenance of an orderly and safe classroom environment in which to perform that task. In the absence of any showing that Wanda�s behavior either violates the university�s academic standards or interferes with classroom decorum or the rights of other students and faculty members, no compelling reason exists to address Wanda�s behavior. Even assuming that Wanda�s behavior suggests clinical issues�a conclusion that is as yet highly suspect�the evaluation that Dolores appears to be offering is not reasonably related to her role as a psychology educator. Rather, it threatens to use the power differential between professor and student to impose clinical assessment and �treatment� on an involuntary client. In this respect, the scenario raises clear informed consent issues. In constitutional terms, Wanda has a liberty-related right to remain free from arbitrary counseling. This case example can be understood alternatively as an equal protection dilemma. The school�s counseling out of Wanda�the state action performed by Dolores and her colleagues�can be regarded as a classification based on Wanda�s fundamental right to privacy and self-expression, as discussed earlier. The foregoing constitutional review of Wanda�s case is not intended to suggest that a student�s communication can never be interfered with or classified by a public university. The grading of examinations and papers is one such example of a classification. In contrast to the categorization attempted by Dolores in this case example, however, grading is reasonably related to the university�s essential purpose, and uses uniform standards that keep students more or less on an equal footing. Students� performance in field practicum and clinical training placements may also require faculty evaluations that grade students on the basis of their communications with clients and co-workers. Here again, however, such evaluations must be narrowly tailored to serve the limited purpose of evaluating student competence objectively in specific tasks. The use of due process and equal protection analysis was described earlier as a means of promoting diversity. The present case example offers a compelling demonstration of this point. In cross-cultural professional relationships, diverse communication styles may sometimes be inappropriately labeled as a failure�often by a minority student�to conform to expectations. By strongly discouraging this type of labeling, the duty to treat clients with due process and equal protection offers specific protections to all recipients of government services, including students. Moreover, recognizing the applicability of due process and equal protection can help to discourage the use of speech based classifications as a proxy for more odious categorizations, such as those based on race and ethnicity. The present case example also raises interesting procedural due process concerns. In the scenario, Wanda plainly has a property right associated with her education. It cannot be regarded as fundamental, because no constitutional protections�either federal or state�have yet recognized the right to an advanced professional education. Wanda�s property right is protected, however, by procedural due process. In her situation, the counseling out process may be used�either intentionally or not�as an informal, less confrontational form of gatekeeping, i.e., the process of determining the eligibility of entrants into the behavioral health professions. When it is practiced in the manner described in the present case example, it serves to eliminate the procedural rights that a public university student should have, including notice of the reasons justifying formal disciplinary action and an opportunity for a hearing. The faculty�s �request� to a student that she withdraw from classes under the circumstances presented is not much different from a police officer�s �request� to enter the home of a person having a loud party. Both requests take advantage of a position of authority, and both may be intended to accomplish a specific end without formal process. Wanda�s dilemma offers vital guidance to decision makers considering the impact of constitutional protections on practice problems. As the case example suggests, mastery of the principles underlying due process and equal protection offers decision makers practical assistance in the consideration of critical, cross-cultural practice dilemmas. Moreover, Wanda�s case demonstrates that a client�s right to life, liberty, and property has concrete implications in all elements of behavioral health practice.

1 thought on “Does “counseling out” students from university programs violate their constitutional rights?

  1. I can top this one. A professor — with no medical background — concludes that a graduate student has epilepsy. The student does *not* have epilepsy, is not disruptive, and is in good academic standing.

    The professor kicks the student out of the program “until he takes treatment for Epilepsy” and then announces the same to the entire graduate cohort.

    Of course in the example given above, the university likely would do an involuntary psych commitment for 3 days and use that to kick Wanda out of school on a medical basis. I’ve seen it done — I actually have actually gone so far as to hide students so that the police couldn’t find them.

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