Student Due Process

Student Due Process in Public Schools

Introduction The Due Process Clause is found in two places in the Constitution. First, the Fifth Amendment addresses basic due process rights. The Fifth Amendment states that, “No person shall…be deprived of life, liberty, or property, without due process of law” (U.S. Const. amend. V). The Fifth Amendment’s Due Process Clause applied only to federal actions. The Fourteenth Amendment expanded the Due Process Clause to state actions. The Due Process Clause of the Fourteenth Amendment provides that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV). These two clauses make it clear that Americans are not to be deprived of Due Process of Law, however there has been some question about what due process students, who are generally minors, who are entitled to in the public school setting.
According to Doug Linder:
The most obvious requirement of the Due Process Clause if that states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property"). Although it is probably the case that the framers used the phrase "life, liberty, or property" to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property--if the interest doesn't fall into one of those three boxes, no matter how important it is, it doesn't qualify for constitutional protection (2009).
Furthermore, Linder believes that the Due Process Clause has a dual purpose. Its first purpose is “to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story (Linder, 2009). In fact, the Due Process Clause is basically the Constitution’s guarantee of fairness, which is why it is an important component of the Fourteenth Amendment’s Equal Protection guarantee. “Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded” (Linder, 2009). One of the reasons that due process in the school setting is such a difficult issue is that what process is due depends so heavily upon the services involved. Are educational rights the type of property rights that give rise to due process concerns? Is suspension from school akin to a deprivation of liberty? All of these issues impact the due process considerations found in school law cases.

Legal precedents
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969). Although Tinker did not deal with students’ right to due process, it is an important case to examine when examining due process rights because it discusses the constitutional rights of students in public schools. The case involved students wearing black armbands to protest U.S. involvement in Vietnam. The school determined that it would suspend any students wearing these protest armbands. In determining that the school had exceeded its authority, the Court had to consider whether students retained their constitutional rights in the school setting. In fact, the Court held that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (393 U.S. 503, 506 (1969).
Goss v. Lopez, 419 U.S. 565 (1975). In Goss, appellant administrators of the Columbus, Ohio, Public School System (CPSS) challenged the judgment of the trial court, which declared that appellee students were denied due process of law when they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter. Under Ohio law, children between the ages of 6 and 21 were entitled to a free education. Ohio Rev. Code Ann. § 3313.66 allowed principals to suspend or expel students for misconduct. Expelled students were given an opportunity to appeal their expulsions, but suspended students had no similar protection. In fact, neither the CPSS nor any of the individual high schools involved in the dispute had any written guidelines regarding what actions subjected a student to suspension. Each of the students had been suspended without a hearing, and filed an action under 42 U.S.C.S. § 1983, alleging that the CPSS suspension system violated their due process rights. Many of the activities leading the suspension occurred in front of the administrator who ordered the suspension. Moreover, while the students were not given a hearing, some of them were offered the chance to attend a conference to discuss the student’s future. The fact that there was no constitutional right to an education at public expense did not mean that a public education was not a protected property right. The Constitution does not create property rights, but protects property rights created by other areas of the law. The Court determined that under Ohio Rev. Code Ann. §§ 3313.48 and 2213.64, the appellees had a state-law created entitlement to a public education. Furthermore, the Court determined that, having given appellees this right to a free education, the state could not withdraw the right on the grounds of misconduct without affording the students some type of due process. In fact, the Court concluded that “the authority possessed by the State to prescribe and enforce standards of conducts in its schools although concededly very broad, must be exercised consistently with constitutional safeguards” (419 U.S. 565, 574). The Court also concluded that suspensions could impact the students’ liberty. The suspensions could impact the students’ reputations among their peers, with their teachers, and interfere with later employment and educational opportunities. As a result, the suspension could work a deprivation of liberty. The fact that a suspension of less than 10 days was not a significant deprivation of property or life was unimportant. The Due Process Clause protects people from any unlawful deprivation of liberty or property. Furthermore, the Court determined that a 10-day suspension was significant and could not be imposed without adherence to due process, while recognizing that a suspension is was less significant than an expulsion. “Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary” (419 U.S. 565, 576). Having determined that due process applied, the Court then had to determine what process was due. The Court concluded that “At the very minimum…students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing” (419 U.S. 565, 579). Furthermore, the type of notice and the nature of the hearing must take into account both the school and the student’s interests. The Court found that there was a substantial risk of error in disciplinary proceedings, and that school districts had to take steps to avoid error. However, the Court also recognized the schools had to have the ability to discipline students and impose order. “Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device” (419 U.S. 565, 580). As a result, the Court refused to impose elaborate hearing requirements, but did state that a student should have an opportunity to hear the accusations against him and to tell his side of the story:
Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school (419 U.S. 565, 581). Most courts have followed the Goss’ courts example, and have determined that when a student is denied access to education, they are deprived of a protected property right and must receive due process. For example, in Gorman v. University of Rhode Island, 837 F.2d 7 (1st Cir. 1988), a student subjected to a long-term suspension had a right to due process. 837 F.2d 7, 12. Furthermore, even students who can still access an education, but are but in a different setting, like an alternative school, have a right to due process. In Cole v. Newton Special Municipal Separate School District, 676 F. Supp. 749 (S.D. Miss1987), the court held that “The primary thrust of the educational process is classroom instruction; therefore minimum due process procedures may be required if an exclusion from the classroom would effectively deprive the student of instruction and the opportunity to learn. 676 F. Supp. 749, 752.
Ingraham v. Wright, 430 U.S. 651 (1977). In Ingraham, petitioner students filed an action pursuant to 42 U.S.C.S. § 1981-1988, seeking damages and injunctive and declaratory relief against respondent school officials, alleging that petitioners had been subjected to corporal punishment in violation of their constitutional rights. At the time, a Florida statute authorized corporal punishment after a teacher consulted with a principal or other supervisor, as long as the corporal punishment was not degrading or unduly severe. Furthermore, the School Board had a regulation governing the application of corporal punishment, limiting it to swats with a wooden paddle, applied to a student’s buttocks. The evidence revealed that the petitioners received exceptionally harsh corporal punishment. The petitioners alleged that this corporal punishment violated the Eighth Amendment’s prohibitions against cruel and unusual punishment. The Court disagreed with the petitioners’ assertions. The Court found that the Eighth Amendment’s prohibition against cruel and unusual punishment was directed at people convicted of crimes and did not apply to students in public schools. Moreover, the Court refused to strip the Eighth Amendment of its historical context and extend it to public school disciplinary practices. The Court held that:
The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner. In virtually every community where corporal punishment is permitted in the schools, these safeguards are reinforced by the legal constraints of the common law. Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability. As long as the schools are open to public scrutiny, there is no reason to believe that the common-law constraints will not effectively remedy and deter excesses such as those alleged in this case. 430 U.S. 651, 670. Furthermore, the Court specifically addressed whether the Due Process Clause of the Fourteenth Amendment required notice and hearing prior to imposition of corporal punishment. The Court did find that students have a liberty interest in being free from bodily restraint or appreciable physical pain. Obviously, corporal punishment, a form of physical punishment, may place liberty at risk. As a result, the Court found that “corporal punishment in public schools implicates a constitutionally protected liberty interest, but [held] that the traditional common-law remedies are fully adequate to afford due process” 430 U.S. 651, 672. In fact, the common-law tradition of permitting corporal punishment played a significant role in the Court’s decision. The Court held that:
Were it not for the common-law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. But here we deal with a punishment - paddling - within that tradition, and the question is whether the common-law remedies are adequate to afford due process. 430 U.S. 651, 674-5.
As a result, the Court examined the competing interests involved in the case. First, the Court found that “child's liberty interest in avoiding corporal punishment while in the care of public school authorities is subject to historical limitations” 430 U.S. 651, 675. In fact, under the common law, a child could not recover damages from a teacher giving moderate physical correction. Furthermore, corporal punishment was still legal in most states at that time. Therefore, “under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common-law privilege” 430 U.S. 651, 676. However, the Court did recognize that corporal punishment contained an inherent risk of an unlawful intrusion on a child’s liberty. Therefore, it looked at the procedural safeguards that Florida had in place to ensure that children were not wrongfully punished and to provide for resolution of disputed questions of justification. It found that Florida had sufficient safeguards to protect the student’s liberty interest:
Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive - not reasonably believed at the time to be necessary for the child's discipline or training - the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties. 430 U.S 651, 676-7.
Even the fact that the students involved in the dispute alleged abuse, the Court found that such abuse was not the norm. In addition, it found that the risk of a wrongful punishment was small because paddlings were generally given in response to teacher-observed behavior. 430 U.S. 651, 677-8.
Barnard v. Inhabitants of Shelburne, 216 Mass. 19 (1913). In Barnard, the Supreme Judicial Court of Massachusetts was asked to determine whether a student was entitled to a hearing before being excluded on academic grounds. The Barnard court was the first court to clarify the difference between academic and disciplinary procedures. In fact, the Barnard court found that disciplinary cases had no application to academic cases. According to that court, “Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship” 216 Mass. 19, 22-3.
While it was a state court decision and limited to Massachusetts, the Barnard decision sent a signal that academics and disciplinary matters would not receive the same due process protection.
Board of Curators of the University of Missouri et al. v. Horowitz, 435 U.S. 78 (1978).
In Horowitz, the respondent a student at the University of Missouri-Kansas City Medical School was dismissed from the school. Several faculty members had complained of Horowitz’s performance during her pediatrics rotation as a medical student; as a result, the Council of Evaluation recommended that she go to her final year on probation. Faculty continued to be dissatisfied with Horowitz’s performance, and recommended that she be dropped as a student if she failed to make a radical improvement. Horowitz was allowed to take examinations as a form of appeal, but the majority of the examining physicians failed to recommend that she be allowed to graduate on schedule. When Horowitz failed to improve, the Council decided to drop her as a student, and its decision was approved by the Coordinating Committee and the Dean. Horowitz brought an action under 42 U.S.C.S. § 1983, alleging that she had not been accorded due process prior to her dismissal. The Court of Appeals reversed the trial court’s decision, which concluded that Horowitz had been all rights guaranteed by the Fourteenth Amendment. The Supreme Court reversed the Court of Appeals’ decision.
The Court, building on the earlier decision in Barnard, determined that school officials do not have to grant a hearing before excluding a student on academic grounds. The Court held that a “school is an academic institution, not a courtroom or administrative hearing room” 435 U.S. 78, 88. The Court distinguished its decision from the Goss decision by highlighting the differences between academic evaluations and disciplinary determinations:
Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative factfinding proceedings to which we have traditionally attached a full-hearing requirement. In Goss, the school's decision to suspend the students rested on factual conclusions that the individual students had participated in demonstrations that had disrupted classes, attacked a police officer, or caused physical damage to school property. The requirement of a hearing, where the student could present his side of the factual issue, could under such circumstances "provide a meaningful hedge against erroneous action." The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision making. 435 U.S. 78, 89-90.
Furthermore, even if academic dismissals could warrant the same type of due process scrutiny as disciplinary dismissals, the facts of the case fail to support Horowitz’s claim that her dismissal was either arbitrary or capricious. She was notified repeatedly of her academic deficiencies and given multiple opportunities to bring her academic performance up to the standard demanded by the medical school. However, she failed to do so, and her professors indicated concerns that she was not prepared to be a practicing doctor.

Discussion When viewing these cases together, it becomes clear that public school students have substantial, but incomplete due process rights. To determine whether or not a student is entitled to due process, the first consideration is to look at whether the student is being deprived of a protected liberty or property interest. Students are given a statutorily recognized right to a free public education in almost every state in the nation. As such, any action that interferes with a student’s ability to obtain that education interferes with a protected property right, and probably has to offer some procedural protections for the student. That is why students, who have been facing disciplinary procedures in grades K-12, such as suspension, alternative schooling, or expulsion, must be afforded some due process before receiving their punishment. Moreover, while none of the studied cases discussed academics in the K-12 setting, it is important to note that no state public education system provides a means to “flunk out” underperforming students in grades K-12, as long as those students are below the maximum age allowed for public school enrollees. While those students may be held back and made to repeat a grade, that process does not deprive them of a property right, and would probably not require any type of due process. However, not all public school students have a protected property interest in their education. Colleges and universities are not statutorily required to provide an education to their students, making it questionable whether students have the same protected property interests after completing grade 12 as they do prior to completing grade 12. Courts have extended those protections to students encountering disciplinary proceedings in the college environment. However, the courts have made it clear that colleges and universities have the right to establish their academic standards and to expel students who fail to meet those standards. While the Horowitz court did not discuss this, one of the probable reasons that academic decisions do not require the same due process protections as disciplinary decisions is that academic requirements are known to all students when they begin college, and academic performance is measured in a more objective manner than disciplinary issues. What is most interesting is that students seem to have only a limited liberty interest at school. Due process does not protect a student’s right to be free from physical harm, at least in the context of corporal punishment. In fact, the Court declined to extend the Eighth Amendment’s prohibitions against cruel and unusual punishment to school children, despite evidence that the children seeking such a prohibition had been the recipients of excessive corporal punishment. Instead, because students have historically been subject to corporal punishment in school, and that punishment is subject to community censure, the Court determined that it did not require due process to administer the punishment. Moreover, children are regularly deprived of liberty in the school setting; not only school children, but also their parents, can be subjected to criminal or delinquency proceedings for truancy, but the Court requires no due process necessary to require children to enroll in school.

Conclusion Students in public schools have some due process rights, but those rights are not instinctual. The right to personal liberty and freedom from physical harm, which has been greatly expanded in the criminal context, is considered so minimal for school children that they do not even have a right to due process before receiving such punishment. However, a student does have a due process right before being suspended, expelled, or sent to alternative school. Basically, students and criminals have opposing due process rights, because, while prisoners can be sent to isolation without due process, but cannot be subjected to corporal punishment; students can be subjected to corporal punishment, without a due process review, but must be afforded due process before being suspended for a disciplinary reason. Finally, schools, being in the business of education, have the right to make academic decisions about students without affording those students due process prior to being expelled for academic reasons.
References

Barnard v. Inhabitants of Shelburne, 216 Mass. 19 (1913).
Board of Curators of the University of Missouri et al. v. Horowitz, 435 U.S. 78 (1978).
Cole v. Newton Special Municipal Separate School District, 676 F. Supp. 749 (S.D. Miss 1987).
Gorman v. University of Rhode Island, 837 F.2d 7 (1st Cir. 1988).
Goss v. Lopez, 419 U.S. 565 (1975).
Ingraham v. Wright, 430 U.S. 651 (1977).
Linder, D. (2009). The Due Process rights of students. Retrieved November 5, 2009 from
Exploring Constitutional Conflicts Web site: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/dueprocesstudents.htm
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969).
U.S. Const. amend. V.
U.S. Const. amend. XIV.