Student Suspension and Due Process Rights

K-12 Law School Series

Student Suspension and Due Process Rights

Marilyn Gardner, a lawyer, spent years teaching Advanced School Law at the university doctoral level. Her focus was court decisions at all levels of government which have had an impact on the governance of schools and what school personnel can do in terms of the operation of schools, curriculum, instruction, assessment and school personnel, and treatment of candidates. Marilyn Gardner, Lawyer, would always stress that failure to comply with school law can have far-reaching and costly implications.

The K-12 School Law Series curriculum focuses on the Pearson Educational Leadership Series books which focus on the major areas of school litigation and promotes an understanding of the principles of law that guide the governance and operations of schools while equipping school authorities with appropriate knowledge, skills and disposition to fulfill their obligations to school-aged youngsters.

In her research, she identified four Pearson Educational Leadership Series books (https://www.amazon.com/School-Law-Public-Schools-Educational/dp/0137072759) that are valuable resources on these topics.  They cover many facets of K-12 School Law and are important resources to empower school administrators and staff.  They are:

• Law and Ethics in Educational leadership, David Stader ISBN: 978-0-13-268587-0
• School Law and the Public Schools, Nathan Essex, ISBN: 978-0-13-707275-0
• A Teacher’s Pocket Guide to School Law, Nathan Essex, ISBN: 978-0-13-335191-0
• School Law: Cases and Concepts, Michael W. LaMorte, ISBN:978-0-13-707247-7

Pearson’s resources (https://www.pearson.com/us/sign-in.html) focus on the major areas of school-related litigation and the implications of court rulings for school leaders, teachers as well as the related changes in policy affecting the school environment. School staff will be empowered to deal in legally defensible ways with school- and community-based situations and remain current with school-related law and policy.

Topic: Student Suspension and Due Process Rights

Pearson Educational Leadership Series

• Sample Scenarios from: Law and Ethics in Educational leadership, David Stader (ISBN: 978-0-13-268587-0) and School Law and the Public Schools, Nathan Essex, ISBN: 978-0-13-707275-0

The legal concept of procedural due process has been around at least since the Magna Carte of 1215. Also known as ‘common law’, the procedural due process gives a person a fundamental right to a hearing.

Outside the public school setting, the hearing generally requires that the charges be shared with the accused and that the accused have a chance to present their side of the story. In the Fifth and 14th Amendments of the U.S. Constitution, due process is required before the state deprive someone of “life, liberty, or property”.

However, it was not until the 1961 case Dixon v. Alabama State Board of Education that Constitutional due process guarantees were applied to students facing expulsion from a public college. Later cases confirmed that suspension of public school students also required substantive and procedural due process; especially in the case of long-term suspension; defined as 10 days or longer.

Let’s study this issue using the following case scenario.

You are the principal of a high school. Yesterday, you disciplined a student, your star quarterback on the school football team, for use of alcohol. Upon the student’s arrival at school, you observed that the student was disoriented, had glassy eyes, slurred speech and a strong smell of alcohol on him. After some discussion, you concluded that

the student was intoxicated. A search of the student’s locker produced a half-empty

bottle of whiskey.

Despite the evidence, the student insisted that he had not been drinking and claimed not to know where the alcohol came from, suggesting that it may belong to his locker partner. Additionally, the student suggested that his physical symptoms were probably the result of cold medication. In reviewing the student records, you were reminded that the student had already been disciplined for possession of alcoholic containers in his vehicle at a football game earlier this year.

Your district policy required the student to be suspended for 10 days. The student begged you to waive the discipline because the state playoff games were starting that weekend. However, you went ahead with the prescribed discipline. You explained the infraction and the assigned discipline action both verbally and on a written discipline notice. A copy of the notice was mailed home with an attachment describing the parent’s right to appeal your discipline decision. Despite the suspension, this morning the student returned to school handing you a letter from his parents appealing your decision and asking for a hearing. The student has been spending the day bragging to everyone how he will still be able to attend school and play in the upcoming football games. Several teachers have been in your office demanding that the student be sent home and suspended from playing in the games, citing that his presence in school is creating a “mockery of the discipline of this school”.

In addition, your ability to lead effectively is being questioned if you do not take action to remove the student immediately. You have also taken a call from the school athletic booster club president and a school board member threatening to “run you out of town” if your actions result in the student not playing in the ball games and in the school losing their first chance at a state title in decades.

Let’s legally review this scenario by answering the following questions.

Question 1: Has the principal in this case study provided adequate due process for a suspension of 10 days?

Let’s see what the 14th Amendment says about required due process in the case of a suspension from a public school? What does case law say about required due process in the case of a suspension from a public school? What does state law and school policy say about required due process in the case of a suspension from a public school?

The correct answer is yes. The 1975 case Goss v. Lopez ruled that a suspension of 10 days or more from school denied a student of both substantive property and liberty interests as guaranteed by the 14th Amendment. They cited that a 10-day suspension from school was not a trivial loss of education and required the provision of procedural due process.

The Goss case required the following due process for all suspensions:

• Oral or written notice of the charges against the student

• If the students deny the charges, an explanation of the evidence against them

• An opportunity to present his side of the story

The court indicated that these three procedures could be conducted immediately between the principal and the student and that no formal hearing was required prior to the administration of the discipline.

However, both the Goss case as well as the 1961 case Dixon v. Alabama State Board of Education, Fifth Circuit indicated that suspensions of 10 days or longer would need to also provide more formal due process procedures.

The Dixon case suggested the right to a more formal hearing, including a right to an attorney at a hearing, the names of the witnesses against the student, a written report of the facts in the case, an opportunity to present to an appeals board, and the ability to call witnesses on their behalf.

Question 2

Is the student allowed to attend school and play in the football games pending the conclusion of the appeal hearing?

Once again, what does the 14th Amendment say about required due process in the case of a 10-day or more suspension from a public school? What does case law say about required due process in the case of a 10-day or more suspension from a public school? What does state law and school policy say about required due process in the case of a suspension from a public school?

The answer is yes. Using the Dixon case and recommendations in the Goss case, a more formal due process procedure is required. Using the due process steps suggested in the Dixon case, most school districts have developed policies for long term suspensions of 10 days or more to include these additional due process steps:

• An opportunity to appeal the Principal’s discipline in writing, and request a formal hearing before the superintendent and school board.

• An opportunity to continue to attend school and be presumed innocent until the conclusion of the formal hearing before, and the decision of the school board. In addition, some states have provided even further due process for long-term suspensions. For example, in the 1985 case in re Roberts, 150 N.C. App. 86, 563 S.E. 2d 37, the court ruled that students in North Carolina had the right to be represented by an attorney in the hearing, to confront and cross-examine witnesses, and to call witnesses on their behalf. In regard to this case study, the principal is obligated to allow the student to continue to attend school until the formal appeals hearing is concluded.

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