Dissenting.
Respectfully, I must dissent. The majority opinion skims over important facts and ignores relevant legal analyses that are vital to the resolution of this case.
First the facts: Appellant, a member of the National Guard, enrolled in Centre College. He had permission from the College to continue with his guard service. Appellant became involved in campus activities and was active in efforts to improve student conditions. There is testimony in the record that some members of the administration had challenged his efforts and even went so far as to suggest that he transfer to another college if he didn’t cease his activities. In the spring semester of Trzop’s junior year, the girlfriend of an acquaintance of Trzop informed her that Trzop had made threats of physical violence against her boyfriend. The student claimed that she was afraid for her boyfriend’s safety because she was told that he had a knife.
Following this complaint, Centre personnel contacted a local police officer to seek advice from law enforcement. The record reflects that Danville City police required the complaining witness to come in and make a formal complaint before they would investigate and that no complaint was filed. Centre personnel decided to perform their own search of Trzop’s room. The record reveals that before contact by college officials was made with Trzop or the search was performed, a letter was prepared that when signed, would formally dismiss Trzop from the college. Without giving notice to Trzop or his roommate, their room was searched and three pocketknives and a military issue knife were found. Trzop testified that the military knife was part of his National Guard equipment and that he had to store it on campus in the event he was called for duty. Other testimony from college officials indicate that they did not feel it necessary to either supervise Trzop or warn other students about him during the two days between notification of the alleged threat and the dismissal of Trzop. Centre then required Trzop to meet with various administrative personnel, including the acting Dean of Students and campus security officers, regarding the knife. Also present at the meeting was an employee of a mental health agency, whom Centre claims in its brief, was there “to help in assessing Trzop’s mental state.” Trzop was not informed that he was under a mental health examination at the time, nor did he consent to such evaluation or examination. Trzop was not given any advance warning of the meeting, but was removed from class by campus security officers, who escorted him to the meeting, and seated themselves on either side of him during the meeting. Trzop asserts that these officers prevented him from leaving the meeting.
During the meeting, Trzop denied making any threats against any other student, while admitting that the knife was his, was part of his National Guard gear and was a gift from his father, who served in the United States military. Trzop’s parents were neither notified of the meeting nor present. Trzop asserts that he was given no opportunity to state his case or mount a defense to the charges during the meeting. *570He was given the previously prepared letter of dismissal, and escorted to his room by the campus security personnel to collect his bfelongings.
Trzop was refused the right to pursue re-admission unless he agreed to psychiatric treatment and evaluation as specified by Centre, rather than as determined necessary by any trained mental health professional. Additionally, Centre required that Trzop’s “attitude” change prior to any request for re-admission.
Trzop’s suit in Circuit Court claims that his due process rights were violated by Centre by the failure to receive any notice of the pre-dismissal meeting, given no opportunity to defend himself, or to call any witnesses on his behalf. Neither the student who allegedly heard the threat, nor the student who was allegedly the object of the threat, were contacted regarding the veracity of the charges. He further alleged that he was not provided with a reason for his dismissal at the time it took place and that in later communications with the College the reason varied. In response to discovery requests, Centre asserted that the dismissal was “because he was believed to be a threat to himself and others.” In contradiction to this assertion, many of the witnesses deposed stated that Trzop denied being a threat to others and that he showed no sign of being a threat to himself. Centre also claimed in its Reply in Support of Summary Judgment, that Trzop was “provided with the fundamentals of due process-notice and opportunity to be heard-at the time of his dismissal and afterwards” and that the law requires no more.
The trial court’s grant of summary judgment was founded upon the finding that there is no statutory requirement that a private college, such as Centre College, has to provide any due process to students, and that the student handbook does not impose any such duty. Finding that the student handbook prohibits possession of any dangerous weapon and that Trzop admitted having the knife, dismissal was warranted.
It is my opinion that this dismissal was completely erroneous. As a private college, Centre is subject to being and remaining licensed as a nonpublic entity for higher learning by the Kentucky Council on Higher Education. The General Assembly charged the Council with the responsibility with such licensing in KRS 164.945 et seq. The Council had promulgated various administrative regulations to facilitate the licensing process for nonpublic colleges. One such regulation is 13 KAR 1:020 Section 7(ll)(h), which states in pertinent part that “[t]he college shall establish suitable policies and procedures whereby a student is assured due process.” The majority opinion holds that this regulation is neither an unwarranted extension of the enabling act, stating that it promotes neither the name nor recognition of the Commonwealth’s institutions of higher learning, nor protects the Commonwealth’s citizens from fraudulent or substandard educational institutions. In my view, both goals will truly be advanced by the simple recognition of the fact that when a student is accused of misconduct in a Kentucky institution of learning, he or she will be given notice of the complaint, the right to present a defense to the charge and the right to confront witnesses. ■ While the Student Catalog provides for sanctions, including dismissal from the College in unusual circumstances outside the standard Student Judiciary, nowhere does it state that those sanctions may be imposed without the right to simple due process.
I take no comfort in the fact that Trzop admitted the knife at issue was in his possession, thereby confessing to a violation of the student code. There is a clear *571question of fact as to whether Trzop’s membership in the National Guard was taken into account by the Acting Dean of Students during the confrontation on the day he was dismissed. The Dean later testified that he did not know that Trzop belonged to the organization while Trzop testified that Centre not only knew of his membership but also had specifically granted him permission to attend training. Further, the Dean testified that he had no interest in sorting out the truth of the third party complaints about Trzop; rather, his primary interest was to ensure that the student be removed from campus. The ultimate penalty of dismissal from an educational institution is surely one that should be imposed after the most careful of reflection and after all other possible sanctions have been considered. It appears from this record, when viewed in a light most favorable to the plaintiff, that there was no consideration of any other sanction. Indeed there seems to have been little consideration of the entire situation. Preparing a letter of dismissal before the search was conducted or the student questioned can count as due process by no one’s definition, it can only be considered an arbitrary act.
I would affirm the Court of Appeals and remand this case to the Boyle Circuit Court for a trial on the merits.
KELLER, J., joins this dissent.