We constantly receive inquiries from relatives of minors studying at private educational institutions, as well as university students, and even from the institutions themselves—some of which are our clients—regarding internal disciplinary proceedings.

This is undoubtedly an interesting topic that, with the implementation of virtual classes and exams, has recently gained significance. Therefore, we outline below some relevant ideas on the matter.

1. The Principle of Academic Freedom

Academic freedom is a fundamental right that has two facets. On one hand, it is a right held by students, who have the freedom to choose—with the guidance of their parents, in the case of minors—the specific educational institution of their preference.

On the other hand, academic freedom also encompasses an aspect relating to educational institutions, consisting of the autonomy that supports them, which is rooted in Article 79 of the Political Constitution, where it is expressly guaranteed.

In this case, academic freedom translates into the authority to establish and manage an educational project under the terms that each Institution deems appropriate. This freedom, therefore, empowers private educational institutions to define their own standards, their admission rules, and, naturally, the code of conduct imposed upon their students.

Our Constitutional Chamber (Sala Constitucional) has defined the academic freedom of students and educational institutions as follows: “...a) On one hand, the right to learn, freely choosing teachers, enshrined for children through their parents, who hold the fundamental right to choose for their children, and for adults themselves; b) On the other hand, the freedom of private individuals to found, organize, direct, and manage educational centers—private ones—which the State is obliged to encourage, pursuant to the aforementioned Article 80 of the Constitution...” (Constitutional Chamber Judgment No. 3552-92).

As a consequence of the foregoing, private educational institutions are empowered to accept or reject participants in their educational project, as well as to issue their own internal regulations.

However, this freedom is not unlimited. It is clear that under no circumstances may discrimination occur or measures be taken that run contrary to human dignity.

2. Prior Definition, Clarity, and Communication

To be validly applicable to students, the general policies and protocols of a private educational institution must be previously and clearly defined within its internal regulations.

Furthermore, it is essential that these policies, like the rest of the institution's internal regulations, are made known in advance to all students and parents, even prior to the enrollment of the former. It is highly recommended that when they execute the contract with the School, they expressly accept them and bind themselves to their strict compliance.

In such case, if a student's specific conduct is clearly defined in the internal regulations as an offense—even a serious one—the institution would be empowered to apply the regulations and sanction the student in the manner defined within the rules for that respective offense.

To achieve this, however, the institution must conduct due process and respect the student's right to a defense.

3. Due Process and the Right to a Defense

Due process is a procedural legal principle according to which every person is entitled to certain minimum guarantees. This is intended to ensure a fair and equitable outcome within the proceedings. For instance, every person has the right to be heard and to assert their legitimate claims.

In Costa Rica, the right to a defense and the principle of due process are established in Articles 39 and 41 of the Political Constitution, respectively.

The Constitutional Chamber, through consistent jurisprudence, has developed the scope of the right to a defense. An example of this is found in Judgment No. 15-90, issued at 16:45 hours on January 5, 1990: “...the right to a defense guaranteed by Article 39 of the Political Constitution and consequently the principle of due process, contained in Article 41 of our Fundamental Charter, or as it is commonly referred to in doctrine, the principle of 'bilateral nature of the hearing' (bilateralidad de la audiencia), 'due process of law,' or the 'adversarial principle' (...) has been summarized as follows: a) Notification to the interested party of the nature and purposes of the proceeding; b) The right to be heard, and an opportunity for the interested party to present arguments and produce evidence deemed relevant; c) An opportunity for the administered party to prepare their defense, which necessarily includes access to information and administrative background records linked to the matter in question; ch) The right of the administered party to be represented and advised by attorneys, technicians, and other qualified persons; d) Proper notification of the decision issued by the administration and the grounds upon which it is based; and e) The right of the interested party to appeal the decision rendered.” “...the right to a defense safeguarded in Article 39 ibidem applies not only to jurisdictional proceedings but also to any administrative proceeding carried out by the public administration; and that the claimant must necessarily be granted, if they so choose, the right to be assisted by an attorney in order to exercise their defense...” [1]

Consequently, the procedure through which disciplinary actions are ordered must conform to due process and guarantee the student's right to a defense. This implies, among other things, that the student must be informed from the outset of the facts under investigation, which internal rule may have been violated by such conduct, and the potential sanction if found guilty. Furthermore, the student must be given sufficient time to properly exercise their defense, a hearing must be conducted where they are granted the opportunity to defend themselves fully, and they must be made aware of all evidence. Likewise, the student has the right to be assisted by an attorney, and naturally, by their parents if they are a minor. Finally, the resolutions and measures adopted at all stages must be duly substantiated.

4. Limitations on the Institution's Disciplinary Authority

In the preceding paragraphs, we explained that while private educational institutions have the freedom to develop their own educational project, this freedom is not absolute.

For instance, even if a specific conduct is penalized under internal regulations and such rule has been communicated to students and parents, if the rule is discriminatory in any sense, a sanction applied based on it is illegal.

The same occurs when the sanction established by the educational center in its regulations for a specific conduct is disproportionate. For example, if expulsion—the most severe sanction a private educational institution can apply to a student—is imposed on conduct whose severity does not warrant it.

Hence, disciplinary proceedings must not only follow due process, but the sanctions imposed cannot be disproportionate and must never be based on discriminatory rules, among other conditions.

Ultimately, an analysis must be performed in each case to determine the student's potential defense. However, the aforementioned points must be taken into account in all instances. This is for the purpose of assessing whether, in the specific case, the student's right to a defense was respected, due process was followed, and whether the internal regulations do not suffer from serious defects that would render them illegal and inapplicable.

[1] Judgment No. 15-90, issued at 16:45 hours on January 5, 1990.