dissenting. This case involves the suspension of Heather Denton for having a semi-automatic pistol (TEC .22) and four loaded clips of ammunition (three fully loaded with 30 rounds and one with 29 rounds) in her car on campus. The majority stretches to affirm this case and ultimately does so on a completely different basis than that employed by the chancellor. The chancellor granted the injunction because he believed that Ms. Denton lacked the culpable intent to possess the pistol or even knowledge of it. According to the majority, however, Heather Denton was not afforded procedural due process because the notice of her first hearing before the Student Judicial Board was inadequate and the letter of the Student Handbook was not followed in every respect.
The majority is wrong to equate minor lapses in Student Handbook procedures with a violation of the United States Constitution. It is also wrong to affirm for reasons not even raised by Ms. Denton in her pleadings or argued in her brief in this appeal. What she argued to the chancellor was that Dr. John Smith was somehow biased against her and that Dr. Thompson should have discussed the case with her and her mother prior to the Discipline Committee meeting. However, the chancellor found: “I think Dr. Smith was simply trying to enforce the policy as he had been instructed to. And I find no fault in the way he has conducted himself in this matter, whatsoever.”
The majority disagrees and raises procedural lapses never pursued by Ms. Denton. What is patently unfair about this is the University has not had the opportunity to answer the majority’s asserted procedural deficiencies which amount to findings and conclusions by an appellate court. Ms. Denton never asserted a violation of her procedural due process rights in this appeal. The University, as a matter of fact, did contend that due process was given to Ms. Denton and told this court specifically how and why. Ms. Denton did not take issue with that contention. Now a majority of this court does take issue with that contention and does so in a way that forecloses the opportunity of UCA to respond.
But irrespective of the majority’s stretch to find a theory for the affirmance, there was no violation of procedural due process in this case. In December 1992, the University Board of Trustees adopted the gun policy at issue because of firearm incidents on campus:
Any student possessing, storing, or using a firearm on University controlled property or at University sponsored or supervised functions, unless authorized by the University, will be suspended from UCA for a period of not less than three years unless a waiver of the suspension is granted by the President upon the recommendation of the Vice President for Student Affairs.
The gun policy was fully disseminated to the student body.
On February 13, 1993, Heather Denton and the driver and a passenger, Eric Patterson and Rita Patel, were stopped in Ms. Denton’s car, a two-door Pontiac Firebird, on campus by a Conway police officer, Michael Edgmon. Edgmon had been following the car after a disturbance report at a Conway intersection. He searched the car at which time the automatic pistol and clips of ammunition were located in a black bag which had been partially pushed under the passenger seat from behind that seat. The bag was not under the seat as the majority proclaims. Ms. Den-ton denied knowledge of the pistol and clips. Patterson told the arresting police officer that the pistol was owned by Victor Smith.
On February 15, 1993, Dr. John Smith, the University Vice President for Student Affairs, interviewed Heather Denton. He showed her the police report by Officer Edgmon and advised her that she was charged with violating the University’s gun policy and was suspended pending a hearing. According to Dr. Smith and Ms. Denton, after being advised of the charge, they discussed alternatives for a hearing. Dr. Smith told her that she could have an administration hearing as early as the next day before the Dean of Students, Dr. Gary Roberts, or a hearing before the Student Judicial Board. The latter hearing was already scheduled for Wednesday, February 17, 1993. Ms. Denton stated that she would talk to Eric Patterson about it. She opted for a hearing before the Student Judicial Board.
Dr. Smith testified that he sent her a copy of his suspension letter dated February 15, 1993, with notice of the disciplinary hearing before the Student Judicial Board and a copy of Officer Edgmon’s police report. It is unclear whether he gave a copy of either to her at that meeting. The letter and police report were introduced as a joint exhibit at the subsequent trial. Ms. Denton denied receiving the letter before the Student Judicial Board hearing, although she admitted seeing a copy of the police report before that meeting.
On February 17, 1993, the Student Judicial Board comprised of student members conducted a hearing on the matter. Ms. Den-ton was notified of the hearing and present throughout it. Various witnesses were called and testified on behalf of Ms. Denton, including Eric Patterson, Victor Smith, Heather Denton, and Rita Patel. Officer Edgmon, Associate Director of the Department of Public Safety Glenn Stacks, and Assistant Dean of Students John Cagle testified in support of the University’s position. The majority opinion is in error when it concludes that the Dean of Students did not review the charge against Ms. Denton before the Judicial Board hearing. His assistant was at the hearing and participated. The Student Judicial Board recommended that no disciplinary action be taken against Ms. Denton because the Board believed that she did not know the gun was in her car.
On February 22, 1993, Dr. John Smith, after listening to the tapes of the Student Judicial Board hearing and after interviewing Ms. Denton, Eric Patterson, Victor Smith, Rita Patel, and Officer Edgmon as well as the Chairman of the Student Judicial Board rejected the Board’s recommendation. He stated that he believed that she was “guilty of possessing a weapon on the UCA campus” and determined that suspension was in order. At the trial of this matter, he testified that possession of a weapon without knowledge was a violation of the gun policy but that knowledge of the weapon was important for deciding the penalty to be assessed. The inconsistencies in the participants’ stories played a part in his decision to assess the three-year suspension. As between concluding that Ms. Denton knew of the handgun in her car or did not know, he concluded that she did. He especially was influenced by the fact that Victor Smith testified that he had thrown his black bag with the gun and clips on the floor in the back seat and had not pushed it under the seat. He was also influenced by the fact that Ms. Denton had been in her car earlier that afternoon when the gun and ammunition were there.
Ms. Denton appealed Dr. Smith’s decision to the University Discipline Committee comprised of University faculty, staff, and students. On March 4, 1993, which was two weeks after the Student Judicial Board hearing, the University Discipline Committee voted unanimously to hear Ms. Denton’s appeal and did so. Ms. Denton was notified of the hearing and attended. At the hearing that followed, Ms. Denton in attendance with her mother, Paula Jamison, testified and was questioned by the Chair of the Committee. Officer Edgmon also testified as did Dr. Smith. Officer Edgmon showed the gun and ammunition clips seized from the Denton car to the Committee. The Committee voted 5 to 2 to uphold the decision of guilty but to lessen the sanction. The Committee also voted to affirm the decision of guilty as to Eric Patterson and the full three-year suspension.
Ms. Denton next appealed the matter to Dr. John Smith to make the final decision. Because of Dr. Smith’s involvement, he recused and turned the file over to University President Dr. Winfred Thompson. Dr. Thompson reviewed the matter, and on March 9, 1993, he upheld the Committee’s decision but instituted a full three-year suspension for Ms. Denton.
On March 11 and 18, 1993, Ms. Denton filed her petitions for declaratory and injunctive relief. Later, a hearing on the petition was conducted and testimony was taken. At the conclusion of two days of testimony, the chancellor stated his ruling from the bench in which he referred to “gaping inconsistencies” in Ms. Denton’s story. Later, the chancellor entered his decree (1) declaring the University’s gun policy to violate substantive due process, and (2) granting a permanent injunction against the University’s suspension of Ms. Denton. The chancellor further ruled that there was no need for him to discuss procedural due process and that issue was moot.
The standard of review for interference in university disciplinary matters is stringent indeed and was best summarized by a recent Court of Appeals decision:
There is a general policy against intervention by the courts in matters best left to school authorities. “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.... By and large, public education in our Nation is committed to the control of state and local authorities.” Goss v. Lopez, 419 U.S. at 578, citing Epperson v. Arkansas, 393 U.S. 97 (1968). The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Fortman v. Texarkana Sch. Dist. No. 7, 257 Ark. 130, 514 S.W.2d 720 (1974). A chancery court has no power to interfere with school district boards in the exercise of their discretion when directing the operation of the schools unless the boards clearly abuse their discretion. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66 (1987). The burden is upon those charging such an abuse to prove it by clear and convincing evidence. Bowman, 294 Ark. at 71, 740 S.W.2d 909. Undoubtedly these general principles apply to disciplinary hearings for students at state supported universities and colleges.
Henderson State University v. Spadoni, 41 Ark. App. 33, 35, 848 S.W.2d 951, 953 (1993). Accordingly, the courts of this state should be most reluctant to interfere in disciplinary proceedings of state colleges and universities such as we have here except when violations of due process rights are clear and unmistakable.
Here, if anything, Ms. Denton received more in the way of due process protection than is required. She had two full hearings where she was present and where she testified and other witnesses testified on her behalf: one before the Student Judicial Board, which found her not guilty, and one before the University Discipline Committee, which found her culpable. In addition, her case was reviewed by the University Vice President for Student Affairs, Dr. John Smith, and by the President of the University, Dr. Winfred Thompson. That totals four reviews of her case before she took it to court.
The seminal case for procedural due process protection of students at state universities is Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961). There, the students were expelled from college, and the Fifth Circuit Court of Appeals held that those students were entitled to notice of the charges and the witnesses against them and a hearing allowing both sides to present their positions in complete detail prior to expulsion as part and parcel of due process. Although the Dixon case is credited with establishing a property right in a student’s attendance at a state university, the United States Supreme Court has yet to decide that issue. The Court has, however, assumed a student’s property interest in higher education in order to reach certain due process issues. See Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985).
The Eighth Circuit Court of Appeals has discussed procedural due process in the context of an unruly demonstration on a college campus:
We do not hold that a school has the authority to require a student to discard any constitutional right when he matriculates. We do hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct; that, as to these, flexibility and elbow room are to be preferred over specificity; that procedural due process must be afforded (as Judge Hunter by his first opinion here specifically required) by way of adequate notice, definite charge, and a hearing with opportunity to present one’s own side of the case and with all necessary protective measures', that school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure; and that the courts should interfere only where there is a clear case of constitutional infringement.
Esteban v. Central Missouri State College, 415 F.2d 1077, 1089-1090 (8th Cir. 1969), cert. denied, 398 U.S. 965 (1970). (Emphasis added.)
Though we must assume that Ms. Denton did not receive written notice three days in advance of the Student Judicial Board hearing as the Student Handbook contemplates, she never complained of lack of notice. In fact, she had full notice of the hearing. In Dr. John Smith’s office on February 15, 1995, she was shown a copy of Officer Edgmon’s police report on the Saturday night incident. The two then discussed whether Ms. Denton wanted an expedited administrative hearing before the Dean of Students or a hearing before the Judicial Board in two days which was already scheduled to meet. She chose the latter. The Due Process Clause of the United States Constitution does not require a written three-day notice. It requires notice, and everyone admits that Ms. Denton got notice of the hearing in this case.
She also knew the witnesses against her and what they would say before the Judicial Board hearing on February 17, 1993. Ms. Denton admitted seeing the police report of Officer Edgmon, which was the essence of his testimony, before that hearing. She also knew in advance the administration’s position as testified to by Assistant Dean of Students John Cagle. Ms. Denton, Eric Patterson, Victor Smith, and a friend, Rita Patel, testified in her favor, and the Judicial Board found her not guilty. Dr. Smith then listened to the tapes of the Student Judicial Board hearing and again interviewed pertinent witnesses and the Chairman of the Judicial Board. He decided not to accept the Board’s recommendation.
Fifteen days later, Ms. Denton appeared with her mother at the University Discipline Committee hearing and testified on her own behalf as did Eric Patterson. She certainly had written notice and knowledge of the witnesses against her at this hearing. Officer Edgmon and Dr. Smith testified against her. After the University Discipline Committee hearing, Dr. Smith disqualified himself from making the final decision because of his previous involvement, and the University President, Dr. Thompson, made the ultimate determination. Short of having a full-blown judicial proceeding with counsel present and cross-examination, which due process does not require in this context, Ms. Denton was afforded more than adequate procedural safeguards. See Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961); Nash v. Auburn University, 621 F. Supp. 948 (D.C. Ala. 1985).
Moreover, Dr. Smith did not violate the spirit of due process. He did investigate the initial charge against Ms. Denton on February 15, 1993, but he did not attend the Student Judicial Board meeting on February 17, 1993 — Assistant Dean of Students John Cagle did. Dr. Smith did attend the University Discipline Committee meeting on March 4, 1993 but only for the purpose of explaining his decision to suspend. That Committee did not agree with Dr. Smith’s decision on the penalty, and for that reason he disqualified himself from making the final decision. Far from violating due process safeguards, Dr. Smith was zealous in making certain that they were provided, a fact which the chancellor acknowledged.
The majority complains that Dr. Smith performed protean roles in this matter. Then, illogically, the majority concludes that Dr. Smith was wrong to step aside and let President Thompson make the ultimate decision. The sole reason for Dr. Smith to remove himself from the final decision was to eliminate any suggestion of a conflict of interest. His actions were appropriate and should not be twisted into a reason for concluding that there was a denial of due process.
The majority cites no case for the principle that failure to adhere strictly to Student Handbook procedures amounts, in itself, to a violation of a constitutional magnitude. That is because there are none. Here, Ms. Denton did not complain of lack of notice of the first hearing because she received notice. She did not complain of surprise witnesses against her because there were none, and she had full opportunity to present her own case. That is all that due process requires.
I am fearful that by requiring such strict adherence to student handbooks and equating those procedures to what the U.S. Constitution requires, we undermine the ability of universities and even primary and secondary schools to enforce their disciplinary policies. In this case, a legitimate school gun policy was violated, and there were no procedural lapses of constitutional significance. Indeed, Ms. Denton was allowed to present her case fully on multiple occasions. I dissent.