The Due Process Rights of Students: What is Due Process and What is Not Due Process

Where does the term “due process” come from?

The Fourteenth Amendment to the U.S. Constitution

"No State shall.. deprive any person of life, liberty, orproperty, without due process of law... (Fourteenth Amendment)

What goal(s) does the due process clause serve?

1)To produce, through the use of fair procedures, accurate results: to prevent the wrongful deprivation of interests.

2)To make people feel that the government has treated them fairly by listening to their side of the story.

The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components:

1)NOTICE: an opportunity to be heard at a meaningful time in a meaningful way (this is the hearing or a parent/school meeting regarding impending discipline)

2)DECISION: a decision supported by substantial evidence(In general, the more important the individual right in question, the more process that must be afforded)

Where and how do public school students get the right to due process?

In Goss v Lopez (1975), the Court considered what due process means for students facing temporary suspension from school because of their alleged violations of school discipline rules. The Court concluded that accused students must be afforded an informal hearing with school administrators before such suspensions.

A public school may not withdraw the right to education (property right) on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred. Minimum due process: (1) oral or written notice of the charges, (2) an explanation (if students deny the charges) of the evidence against them; and (3) an opportunity for students to present their side of the story. The Court did not give students a right to a lawyer, a right to cross-examine witnesses, a right to call witnesses, or a right to a hearing before an impartial person.

Generally, notice and hearing should precede the student's removal from school, since the hearing may almost immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the student's presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable.

How Does Due Process Work?

How Do We Establish Knowledge of School Rules?

Most schools publish behavior rules in student handbooks and distribute them to students at the beginning of each year. Many school districts also post school rules at each school. This is done so a child can not argue that your child didn't know of the rule that he or she is accused of violating.

What Is Adequate Notice?

If a child is being suspended or expelled, parents should receive a detailed oral or written notice of the charges, including:

1)The specific act or incidences involved

2)A description of the evidence the school district is relying upon—parents can request a copy of the narrative. If they do so, please remember to redact all of the witness names

3)The exact number of days of suspension, and when the suspension begins and ends—this is satisfied with notice that a student is suspended to a district level hearing

4)A specific date, time and location to appear and challenge the suspension or expulsion

What are some rules that concern Due Process?

The federal Gun-Free Schools Act of 1994 ("GFSA") requires the expulsion- for a period of not less than one year- of students who bring a firearm to school. Utah statute includes up to a 180-day suspension for facsimiles of weapons.

Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in schools. And a parent can use the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution to challenge school disciplinary action if they think the suspension or expulsion is related to racial hostility by school officials.

Under the federal Individuals with Disabilities Education Act, students with disabilities can't be suspended for more than 10 consecutive days, unless students without disabilities would receive the same punishment. Always begin Home and Hospital at the time a SpEd student is suspended to a hearing.

What is NOT Involved in Due Process?
  1. If you learn of conduct that has occurred in the past and that conduct warrants school discipline, due process is not disturbed if you begin an investigation into that past conduct and effect discipline for that conduct. Once you decide to suspend, due process rights begin.
  2. Due Process is not related to the In Loco Parentis Doctrine. In Loco Parentis is Latin for “in place of a parent.” The doctrine is used when a person or an institution that assumes parental rights and duties for a minor. Application of the doctrine requires, at minimum, that (A) the minor’s parents are absent (either voluntarily by overt act or by forbearance, or because of an incident beyond the parents’ control), (B) the adult caretaker on the scene is not the minor’s legal guardian or custodian, and (C) the adult caretaker on the scene has, for the relevant time period, assumed control over the routine care and basic control of the child (e.g. shelter, safety, food, medical care, bathing, clothing, transportation, education, nurturing).

If a parent signs or checks their student out of school during school hours and the student engages in conduct off campus which would violate school rules, the school has NO jurisdiction to discipline that child.

  1. Due Process is not related to on-school conduct v. off-school conduct investigations.

Cyber bullying occurs when students use electronic means, including the use of Internet web sites, chat rooms, instant messaging, text and picturemessaging on phones, and blogs, to bully peers.

The only real differencebetween cyberbullying and traditional bullying is that cyberbullying takesplace on the Internet, and thus cyberbullying results in greater impactbecause Internet content is widely distributed and more public thantraditional bullying. Furthermore, most of the content produced bycyberbullying originates away from the school campus on personalcomputers; however, the effects of such content can be felt every day withinthe schoolhouse gates. The best way to deal with this issue is to have a meeting with the students and parents and let them know the behavior must stop because it is creating a dangerous or disruptive environment at school. After the meeting, if the behavior continues, you must begin to act with school discipline.

Conduct Outside of School Hours or Away from School: Any conduct outside of school hours or away from school which may adversely affect the educational process or endanger the health, safety, morals, reputation, and/or well-being of other students, teachers, or other employees of the school system should be addressed with the aforementioned process.

Investigations Conducted By A School Administrator/Designee

Depending on the nature of the complaint, make sure you notify the K-16 Executive Director of your need to conduct an investigation. ANY complaints involving discrimination or harassment based on the following: race, color, national origin, gender, disability, sexual orientation should be reported to the Chief Civil Rights Officer by phone or email. An incident report documenting the incident and follow-up action should be prepared, as appropriate. School administrators must report suspected student to student sexual harassment and suspected student to student sexual harassment and incidents of sexual harassment involving parents or members of the community to the Chief Civil Rights Officer.

Conduct all interviews with a second staff member present as a witness.

 Review all statements and check to make sure that written/typed statements—

 are signed and dated

 assign a time frame (as specific as possible) to the incident(s)

 indicate if a report of an incident is first hand or if it is based on second-hand knowledge

 are as precise as possible and

 identify all persons mentioned in the statement

If clarification is needed, return to any party who submitted a statement.

 Ask detailed questions regarding exactly what happened.

 Get a signed, written statement from the complainant. If the complainant is a young student (or unable to write), a staff member may take the statement, read it back to the complainant for approval, and have them sign and date the statement. The note taker also should sign and date the statement and include their position title. NO statements should be made on a police witness statement form. Do not have your SRO present for interviews where Miranda warnings have not been issued.

 Interview witnesses or others who may corroborate what the complainant has alleged. Ask for all possible individuals who may have knowledge of the incident and will need to be interviewed. Request a signed and dated written statement from the witness. If someone refuses to write a written statement, they must sign and date a witness statement indicating that refusal.

 Inform the complainant and all witnesses named by the complainant that they are responsible for maintaining confidentiality.

 Make a decision regarding culpability and include that decision in the Narrative prepared for the DL. Hearing. If the action does not warrant a DL Hearing, make sure to create some sort of narrative where you make a decision regarding culpability and determine the extent of disciplinary action if appropriate.