I. Child Advocacy
A. School Law
3. Student Discipline
Students Have Due Process Rights That Must Be Respected Even Before a Short Suspension
Parents and students should know that, even in the case of a short suspension from school, a student has constitutional rights that must be respected before the discipline is imposed.
The Due Process Rights of Students
The Fifth Amendment to the Constitution states, “No person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. In 1969, the Supreme Court of the United States declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Over time, that statement has come to apply to constitutional rights in general, and specifically to Due Process rights. See Goss v. Lopez, 419 U.S. 565, 574 (1975).
A suspension from school is a deprivation of both property and liberty. When state law entitles school-age residents to a free public education and imposes compulsory-attendance laws, it creates a property right in educational benefits, which “may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.” Id. The suspension of a student also implicates the student’s liberty interest in reputation, which cannot be infringed without Due Process.
Specific Due Process Guarantees
In the Goss case, the Supreme Court was concerned with the minimum requirements of the Due Process Clause. “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.” Id. at 579. More specifically, “due process requires, in connection with a suspension of 10 days or [fewer], 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.” Id. at 581.
However, in the case of a short suspension, school authorities may satisfy the notice and hearing requirements with informal procedures. In fact, “There need be no delay between the time ‘notice’ is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred.” Id. at 582. Due Process means merely that, “in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.” Id.
Instances When Pre-Suspension Notice and Hearing Are Not Required
In general, “notice and hearing should precede removal of the student from school.” Id. However, “Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school.” Id. But even in such a case, “the necessary notice and rudimentary hearing should follow as soon as practicable.” Id. at 582-83.
Longer Suspensions and Expulsions
The Goss case applied solely to “the short suspension,” meaning a suspension not exceeding 10 days. Id. at 584. The Court decided not to require a full-blown hearing, which would include the right to an attorney, in such cases. However, it is possible that for suspensions over 10 days and for expulsions, the Court would demand that a Due Process hearing would entail not only the right to counsel but also the right to confront and cross-examine witnesses supporting the charge, and to call the student’s own witnesses to verify his version of the incident.
Contact a School Law Attorney
If you or your child believes that the student has been deprived of Due Process, you should contact a school law attorney who can advise you of your legal rights. If you know that you have the right to counsel in connection with a disciplinary matter, you should engage an attorney if at all possible. The school district will have its own attorneys, and a student discipline hearing should be a fair fight.