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For more than three decades, courts of law
have extended the due process protections of the Fourteenth
Amendment to public school students. More specifically, the
constitutional principle that individuals functioning as state
actors (e.g., public school officials and administrators)
shall not deprive a student of liberty or property without
granting that student due process of law is viable and
applicable in every public school system in this country.
In 2006, while basic procedural due
process is the sine qua non of sound and defensible
student disciplinary policy, legal and policy issues usually
find their genesis in determinations of how much process is
due when individual students run afoul of the school
system’s disciplinary code. As legal experts remind us, “Even
though courts generally uphold the use of discipline in schools,
many cases hinge on whether educational officials provided
students with adequate procedural due process protections.”
Russo (2004)
Procedural Due Process: What Is It?
Characterized as “fundamental fairness,” procedural due process
is a flexible concept and exists on a continuum (with minor
disciplinary offenses on one end and serious offenses on the
other end). The formality and complexity of procedural due
process is conditioned by the severity of the offense. Thus, in
today’s public schools the appropriate application of the basic
elements of procedural due process depends on the specific facts
and unique circumstances in each case.
The purpose of this commentary is twofold.
First, the discussion will establish the historical foundations
of procedural due process as it applies to public school
students. Second, the commentary will explore the legal and
policy implications of procedural due process in the aftermath
of the United States Supreme Court’s decision in Goss v Lopez
(1975)
Historical Foundations
The foundations of law regarding procedural
due process for public school students can be traced back to two
specific cases decided in the 1960’s. In the first case,
Dixon v Alabama State Board of Education (5th
Cir. 1961), the United States Supreme Court had a chance to
speak regarding student procedural due process but denied
certiorari.
Dixon involved public higher
education, and dealt specifically with student expulsions from
school. The issue was whether or not the students involved were
entitled to notice and a hearing prior to their expulsion. While
only binding on the states within the Fifth Circuit, the
decision nonetheless created a judicial precedent that students
enrolled in public colleges and universities are entitled to
notice and a hearing prior to suspension or expulsion
from school. The Dixon decision set in motion a chain
reaction of policy change on college campuses across this
country. Vacca and Bosher (2003)
Six years later, in a case involving
juvenile law, the United States Supreme Court held that a minor
in juvenile court was entitled to procedural due process. The
high court opined that a minor in a juvenile court proceeding is
entitled to: (1) specific notice of the charges against him/her,
(2) time to prepare for a hearing, (3) legal counsel, (4)
protection from self-incrimination, and (5) confrontation and
cross-examination of witnesses against him/her. In re Gault
(1967) While the elements outlined in Gault were never
totally applied to public school settings, the decision laid a
strong foundation for changes to come in the 1970’s. Vacca and
Bosher (2003)
Goss v Lopez: Procedural Due
Process in Public Schools
Almost a decade later, the United States
Supreme Court handed down a decision specifically addressing
procedural due process and public school students. In Goss v
Lopez (1975), several public school students in Columbus,
Ohio, were suspended from school for various disciplinary
infractions. At the time, Ohio law empowered a school principal
to suspend any misbehaving student for up to ten days. Parents
were to be notified of the suspension within twenty-four hours,
reasons for the suspension were given to parents, a suspended
student and/or his parent could appeal the suspension to the
school board, and, if an appeal was filed, a hearing regarding
the appeal was required. In an opinion written by Justice White,
the high court set in motion major changes in student procedural
due process in public schools across this nation when it held
that attendance at a public school is a property right
protected by the Fourteenth Amendment. This right can be taken
away only after taking certain procedural steps. More
specifically, Justice White opined that in suspensions from
school for ten days or less certain procedural steps must be
taken pre-suspension. A student must be given: (1) at least
informal notice of the charges against him/her, (2) information
regarding the evidence against him/her, and, if the student
denies the charges, (3) an opportunity to present his/her side
of the story (i.e., some form of hearing).
It is important to note that
Goss does not require
that an attorney represent students, nor did the court require
confrontation and cross-examination of witnesses. The reader
also is reminded that matters of academic discipline (for
cheating on a test, plagiarism, etc.) are not addressed in the
Goss opinion.
Procedural due process and academic discipline is taken up by
the high court three years later in Board of Curators v
Horowitz (1978)
The Impact of Goss:
Clarification and Application
Between 1975 and 2005, courts were busy
clarifying and applying the Goss requirements. For
example, the United States Supreme Court established that under
certain conditions students who are suspended from school
without being granted procedural due process have standing to
sue school officials in a federal court. Wood v Strickland
(1975)
The importance of adequate notice to
a student of the charges against him/her became an important
element of procedural due process. Courts have made it clear
that notice must be timely, specific, and not stated in vague
language. However, courts also have made it clear that that a
Miranda-type warning is not necessary. For example, in
Boynton v Casey (D. Me. 1982) a student suspected of using
marijuana was questioned on school grounds for one-hour by a
school principal and vice principal, and not by police officers.
At no time was he informed of his right not to answer the
questions, and he was not allowed to have his parents present
during the questioning. Subsequently, he admitted to marijuana
use and was suspended from school. Ultimately, a federal
district court held, among other things, that he was not
entitled to a Miranda warning.
In a 1987, a federal district court in
Virginia added that a student’s right to a hearing meant a right
to a “prompt hearing.” In this case the
court found fault with a state law that allowed for a student
suspension to remain in effect for a period of 30 days pending a
decision of the school board. Doe v Rockingham County
(W.D. Va. 1987)
It must be stressed, however, that a
student disciplinary hearing is an administrative hearing not a
court trial. The key is that a student must be allowed time to
present his/her case before an impartial person or persons. In
other words, a student must be given a “meaningful opportunity”
to present his/her side of the story. Meyer v Austin I.S.D.
(5th Cir. 1999)
The reader is reminded that the formality
of a disciplinary hearing increases in situations where a
student is being considered for expulsion from school. Because
expulsion from school is the most serious form of disciplinary
action the process to be followed becomes more formalized. Vacca
and Bosher (2003)
The Goss Elements in
More Recent Cases
The impact of Goss and the
importance of procedural due process can be observed in variety
of recent student disciplinary cases. For example, in a 2005
First Amendment expression case from a federal district court in
New York, a student contested, among other things, his
suspension from school. He was suspended by the principal
because of thoughts expressed in a journal that he kept as a
part of a sixth grade assignment. He also read the “fictional
story” to fellow students.
In deciding the procedural due process
aspects of the case the court quoted directly from Goss.
A student, said the court, “has a constitutionally protected
property interest in education, ‘which may not be taken away for
misconduct without adherence to the minimum procedures required
by [the Due Process] clause.’” D.F. v Board of
Education (E.D.N.Y. 2005) The district court outlined,
expanded, and restated the Goss elements of
procedural due process. A student must be given:
(1) advanced notice of the charges (including
specific incidents) that (a) will be levied against him or her,
and (b) form the basis of the suspension hearing, (2) a fair
and impartial hearing (which the court emphasizes does not
equate to the procedural protections of a criminal trial), and
(3) a chance to present a defense of his behavior with
counsel.
This past year in a Virginia case, a
federal district court gave a less detailed description of
procedural due process. In the court’s opinion, minimum due
process protections require that a student be given (1) notice
of the charges levied against him, and (2) an opportunity to
explain his side of the story. J.S. v Isle of Wright County
School Board (E.D. Va. 2005)
The reader is encouraged to also see
Jacobs v Clark County (D. Nev. 2005), involving a challenge
to a “mandatory school uniform policy.” In this case the impact
of Goss v Lopez (1975) on state law procedural issues can
be observed.
Procedural Due Process and
Students With Disabilities: More Process is Due
Student procedural due process took a new
path when the United States Supreme Court handed down Honig v
Doe (1988). In this decision the high court made it clear
that in disciplinary actions involving students covered by
special education law, state and local school officials are
bound by the “stay put” provision of the Individuals With
Disabilities Education Act (IDEA). 20 U.S.C. 1400, et seq.
In essence the Supreme Court held that public school authorities
shall not unilaterally exclude from school or classes students
covered by IDEA whose misbehavior is causally linked
to (currently referred to as a manifestation of)
their disability. Horner and Vacca (2005)
The Supreme Court in Honig did not
forbid school authorities from implementing general education
disciplinary procedures in disciplinary matters involving
students covered by IDEA. For example, a suspension from school
for up to 10 days was considered a viable option, and not a
change of placement, when dealing with highly disruptive and
dangerous students with disabilities. Such suspensions were not
considered violations of due process.
In 1997, IDEA was again reauthorized and
placement in an Interim Alternative Education Setting (IAES) for
up to 45 days for drug or weapons offenses became a part of the
law. The reader is encouraged to look at the 2004
reauthorization of IDEA for additional changes in procedural due
process requirements for students with educational disabilities.
(P.L. 108-446, IDEA 2004). The bottom line is that while the
Goss elements apply to all students (including
students with disabilities), more process is due in
situations involving students covered by IDEA.
Policy Implications
As the above discussion demonstrates, the
basic elements of procedural due process must be applied to all
students in every disciplinary situation. The reader is
reminded, however, that procedural due process is flexible and
not a “one size fits all” concept. The appropriateness and
adequacy of its application will depend on the specific facts
and circumstances in each situation. Thus, the legal and policy
implications are many.
What follow are some suggestions to
consider when revisiting existing student disciplinary policies
and considering new ones. Local school system policies must make
it clear that:
·
No student is immune from school discipline.
·
The board, school officials and administrators,
classroom teachers, and other professional and support staff
honor and respect the procedural due process entitlements of all
students.
·
All students who represent an imminent threat of
harm to themselves or to others, or who materially disrupt the
educational environment of a school or school-sponsored activity
will be dealt with immediately and fairly.
·
Fair treatment of all students means that every
student will be given, at a minimum: (1) timely notice of the
charges against him or her, (2) an opportunity to hear the
evidence, and (3) an opportunity to present their side of the
story before an impartial person(s).
·
In situations where a student must be immediately
dealt with, procedural due process will follow as soon
practicable.
·
Students covered by special education law will be
afforded the procedural protections required by law (e.g.,
IDEA 2004)
References Cited
Board of Curators v Horowitz, 435 U.S. 78
(1978)
Boynton v Casey, 543 F.Supp.2d 995 (D.Me.
1982)
D.F. v Board of Education, Syosset Central
School District, 386 F.Supp.2d 119 (E.D.N.Y. 2005)
Dixon v Alabama State Board of Education,
294 F.2d 150 (5th Cir. 1961), cert. denied,
368 U.S. 930 (1961)
Doe V Rockingham County School Board, 658
F.Supp.403 (W.D. Va. 1987)
Goss v Lopez, 419 U.S. 565 (1975)
Honig v Doe, 108 S.Ct. 592 (1988)
Horner, Jeffrey J. and Vacca, Richard S.,
Student Discipline Law. In Lane, Kenneth E., et al.,
THE PRINCIPAL’S LEGAL HANDBOOK, Third Edition (ELA 2005)
Individuals with Disabilities Education
Act, 20 U.S.C. 1400, et seq. (1997 and 2004 Amendments)
In re Gault, 387 U.S. 1 (1967)
Jacobs v Clark County School District, 373
F.Supp.2d 1162 (D.Nev. 2005)
J.S. v Isle of White County School Board,
362 F.Supp.675 (E.D. Va. 2005)
Meyer v Austin I.S.D., 167 F.3d 887 (5th
Cir. 1999)
Russo, Charles J., REUTTER’S THE LAW OF
PUBLIC EDUCATION, Fifth Edition (Foundation Press 2004)
Vacca, Richard S. and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (Lexis/Nexis 2003)
Wood v Strickland, 420 U.S. 308 (1975)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
