Getting your day in court: Due process claims may succeed where First Amendment fails
When Jill Snyder, an eighth grade student at Blue Mountain Middle School in Orwigsburg, Pa., was reprimanded for violating the school dress code, she decided to take matters into her own hands. After school, Snyder went home to create a mock MySpace page ridiculing her school principal. With the click of a mouse and punch of a keyboard, Snyder described her principal as a "married, bisexual man... who enjoys hitting on students and their parents ... and watching the Playboy channel," among other derisive comments. When news of the parody profile spread to the school administrators, she received a 10-day out-of-school suspension. Snyder challenged her suspension on First Amendment grounds, alleging that the school overstepped its authority by penalizing purely off-campus speech with no physical nexus to the school. A U.S. district judge disagreed and dismissed her claims, however; the case currently is on appeal to the 3rd U.S. Circuit Court of Appeals.
The lines between off-campus and on-campus student speech are becoming blurred, and some courts have ruled that actions that occur outside the schoolhouse gate can still be punished in the principal's office. In Snyder v. Blue Mountain School District, the student was unable to convince the court that the First Amendment protected her against punishment. However, as the facts unfolded, it became clear that a different legal theory -- violation of the student's due process rights -- might have fared better.
Due process requires notice and a hearing before an individual is deprived of a protected interest. The Fourteenth Amendment of the United States Constitution forbids a state from depriving life, liberty or property without due process of law. "Property" under the due process clause is defined as any interest to which the government has given someone an entitlement.
In San Antonio Independent School District v. Rodriguez, the Supreme Court held that high school students don't have a federal constitutional right to a public education. However, rights not defined in the Constitution can still be protected by the states.
State Education Statutes
All 50 states have enacted laws that provide for free public education to young state residents. For example, Ohio provides for free education to individuals between the ages of five and twenty-one, and a compulsory attendance law requires students to attend school for no less than 32 weeks.
Because states have decided to extend the right to a public education to individuals within a certain age range, the states cannot take those rights away without notice and a hearing. The Supreme Court held that a student has a property interest in receiving a public education subject to the due process clause when a state establishes and maintains a public school system. (It is important to note that this same right doesn't extend to students who attend private school.)
Goss v. Lopez
The leading case involving student due process rights is Goss v. Lopez. Nine students in Columbus, Ohio, were given a 10-day suspension for a variety of disruptive or disobedient behavior. For example, Dwight Lopez was suspended for damaging school property during a lunchroom commotion. Lopez claimed he was not involved in the disturbance and was simply an innocent bystander. He never had the opportunity to explain his side of the story to school administrators and was subsequently suspended. All nine students were suspended without a hearing prior to the suspension or within a reasonable time after.
The Supreme Court held that a 10-day suspension from school is not de minimis and may not be imposed in complete disregard of the Due Process Clause.Notice and a hearing is essential to make sure that a student is not excluded from the educational process based on a mistake or misunderstanding.
Notice and a Hearing
The requirement of notice and a hearing is an extremely flexible legal concept. "The requirements of due process vary with each situation because they involve a balancing test wherein a person's rights, such as school attendance is weighed against the government's authority, such as maintaining discipline in schools."
The extent to which notice and a hearing is required depends upon the amount of time that a student is expelled or suspended from school. The longer an individual is denied his or her right to attend public school, the more he or she is entitled to detailed notice and an in-depth hearing.
In general, notice requires that a school administrator inform a student what she is accused of doing and what evidence exists to support the accusation. Notice can be given orally or in writing.
A hearing provides students the opportunity to defend themselves against wrongful claims. It can be an informal conversation that occurs directly after a student has been accused of breaking a school rule, or it can be a formal process in front of the school board. A student simply deserves the opportunity to rebut any claims.
In Wood v. Strickland, two girls were expelled from school on charges that they spiked the punch at an extracurricular home economics meeting. Both girls admitted to possessing alcohol at a school event, in violation of school policy. The principal informed the students that they would be suspended subject to a final decision by the school board, but the principal never informed the girls or their parents about where or when the meeting would take place. The court held that the principal violated the students' due process rights when he failed to give them adequate notice about the school board meeting.
No Fair Notice
Before a student can be punished for misconduct, there must be some provision or regulation notifying the student of the prohibited activity. School regulations are normally published in student handbooks. In some instances, however, school policies are overbroad or unclear, and students may not know they are violating school rules.
Donald Miller sued Penn Manor School District in Pennsylvania after he was prohibited from wearing a T-shirt which displayed images of automatic handguns and anti-terrorism comments. The T-shirt was a gift from Miller's uncle who was enlisted in the Army and stationed in Iraq. The school district had a policy prohibiting attire that was "a distraction to the education environment," and the district claimed Miller's T-shirt promoted violence. The court disagreed with the school's assertion and held the policy was unconstitutionally vague because it did not give students adequate notice regarding what articles of clothing were prohibited.
To use the Snyder case as an illustration, Blue Mountain Middle School has a general computer usage policy that requires students to use good behavior when operating school or lab computers. The school's Internet policy informs students that they cannot use the Internet computer network for illegal, inappropriate or unethical purposes. Neither policy addresses how students should operate their personal computers at home. Consequently, under the Miller case, it appears that the school district's punishment violated Snyder's due process rights.
Expulsion versus Suspension
An expulsion occurs when a student is removed from school for more than ten days. A student can be expelled for a variety of infractions including fighting, possessing weapons, sexual misconduct or making bomb threats. Because expulsions include more severe offenses, students are generally provided detailed notice and a more elaborate hearing.
Students are who are suspended normally commit a lesser infraction than a student who is expelled. A student who is suspended may temporarily be denied access to class courses and school-related activities. Typically, suspensions don't last for more than ten school days.
The key issue surrounding due process claims is whether the deprivation suffered by the student resulted in "the total exclusion from the educational process for more than a trivial period." Society as a whole receives a benefit when its citizens are educated, so it's important for students to attend school as often as possible.
In-School and Out-of-School Suspensions
Some courts make a serious distinction between in-school and out-of-school suspensions. When a student receives an in-school suspension he or she is required to complete any academic requirements or homework in the school setting. For this reason, in-school suspensions don't take away a student's opportunity to learn.
Victoria Laney, an eighth-grade student at West Wilson Middle School in Mount Juliet, Tenn., was sent to the principal's office after her cell phone rang during class. The school district had a strict policy regarding cell phone use during school hours, and students who violated this policy were required to serve one day of in-school suspension. Laney filed suit against the school district claiming she was denied her due process property interest in public education because she was forced to miss one day of school. The court ruled that an in-school suspension did not deprive Laney of educational benefits because she was required to complete class work during the suspension.
Out-of-school suspensions require students to completely disconnect from the educational process, so students are entitled to more formal notice and hearing procedures. For example, "a three-day out-of-school suspension has been held legally significant because class-time missed cannot be made up and suspensions are noted on a student's school records which are often available to prospective employers and college admissions personnel."
Expulsions, like out-of-school suspensions, completely separate students from the educational process. Most expulsions require students to stay off school grounds for a specified number of days. Because expulsions deprive students from attending school for a long period of time, students are entitled to a more formal hearing.
In Bogle-Assegai v. Bloomfield Board of Education, a female student physically assaulted a male student who had a broken leg. After a school board hearing, the female student was expelled from school for 180 days. She claimed she was not afforded necessary procedural due process rights at the school board hearing, but the court disagreed. The female student was provided with formal notice about the expulsion hearing, given the opportunity to be represented by counsel, afforded opening arguments, a presentation of evidence, and was given the opportunity to cross-examine witnesses.
Can a student who is subject to repeated time outs claim he has been denied a property interest in his education? The 10th U.S. Circuit Court of Appeals was forced to examine this issue in Couture v. Board of Education of the Albuquerque Public Schools.
After a traumatic kindergarten and first-grade year, M.C. was designated an "emotionally disturbed" child with a defiant personality. After positive reinforcement techniques failed to break M.C. of his bad habits, he was placed in "supervised time outs" where he was encouraged to calm down and reflect upon his actions. M.C.'s mother claimed that M.C.'s procedural due process rights were violated when he was excluded from the classroom without a hearing. The court stated that at some point the excessive use of time outs might become the functional equivalent of a suspension, but that was not the case in this instance. Placement in a timeout or temporary removal from the classroom constitutes only a de minimis loss of one's property rights.
What process is due when a student is denied the opportunity to play sports, participate in the marching band, or run for class president? Many courts note that school activities are essential to a well-rounded educational experience, yet courts continue to hold that participation in these activities is not constitutionally protected.
In Lowery v. Euverard, four varsity athletes circulated a petition to replace the head football coach. When the coach caught wind of the petition, he decided to meet individually with each player. Players who signed the petition but personally apologized to the coach were permitted to stay on the team. Players who refused to apologize were dismissed. The court held that school officials did not violate the students' First Amendment right to free speech by removing players who participated in the petition. "The main purpose of high school is to learn science, the liberal arts and vocational studies, not to play football and basketball."
One court stated that the right to participate in an athletic program was an expectation and not an entitlement. Most courts refuse to recognize a property interest in extra-curricular activities, fearing it would result in a plethora of litigation.
Liberty Interest in Reputation
School suspensions and expulsions can have long-lasting effects for some students, specifically on their academic record. The due process clause is designed to make sure that a person's name, reputation or integrity isn't tarnished by a false allegation. In Goss v. Lopez, the students asserted that four of the 12 randomly selected colleges in the state of Ohio inquire whether the applicant has ever been suspended.
Not only do students have a property interest in their education, but they also have a liberty interest in preserving their reputation. Suspensions and expulsions should be taken seriously because these disciplinary acts can interfere with a student's ability to pursue higher education and employment opportunities.
Removal Without Notice or a Hearing
A student can be removed from the educational process without notice or a hearing in extreme circumstances when that student poses a threat to himself, other students, or the academic process. In these situations notice and a hearing should be provided in a reasonable time after the removal.
School administrators at Shore Regional High School in New Jersey grew concerned when a sophomore student attacked and stabbed a 5-year-old girl after school. The student had been involved in many conflicts with fellow classmates, and school officials thought it would be best to suspend the student until the next board of education meeting. The student was not afforded a preliminary hearing prior to his suspension. The court held that when school officials believe that a student "presents a danger to himself, to others or to school property, they may temporarily suspend the student for a short period of time pending a full hearing which will afford such student procedural due process."
Admission of Guilt
The purpose of notice and a hearing is to give students the opportunity to defend themselves against a mistake or misunderstanding. If a student openly admits his guilt, that student ultimately waives his right to a hearing.
In Cole v. Newton Special Municipal School District, a high school student wore sunglasses to school in violation of school policy and was given a one-day suspension. The student later admitted that she refused to obey her teacher and remove her sunglasses. The court held that "when a student admits to the conduct ... the need for a due process hearing is obviated, since the purpose of a hearing is to safeguard against punishment of students who are innocent of the accusations against them."
Right to Counsel
A student in the midst of a potential expulsion isn't guaranteed the same rights as an individual who is arrested. Students have no right to Miranda warnings and rarely have the opportunity to be represented by legal counsel. Court-like proceedings for minor disciplinary infractions could pose a major burden and expense on school districts.
This doesn't mean that students are never afforded the opportunity to have legal counsel present. Some courts, including the one in the Bogle-Assegai case, are beginning to give students the right to hire counsel and cross-examine witnesses in serious circumstances.
The law is clear that students should be afforded notice and a hearing prior to being excluded from the educational process. But student due process cases don't take a cookie-cutter form. The facts and circumstances surrounding each case play a vital role in the outcome, and as case law demonstrates, it's difficult to determine when courts will rule in favor of students or the school district.
Because it's impossible to predict how a judge will rule, it's imperative for students to assert all potential legal claims. Alleging a violation of one's due process rights may be the key to prevailing in the courtroom.
Attorney Krista Gesaman is pursuing an L.L.M. degree at American University's Washington College of Law. She wrote this story while working as a volunteer law clerk for the SPLC.
- Snyder v. Blue Mountain Sch. Dist., 2008 WL 4279517 (M.D. Pa. 2008).
- Black's Law Dictionary 223 (Second Pocket Ed. 2001).
- U.S. Const. Amend. XIV, 1.
- The Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
- San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1972).
- Ohio Rev. Code Ann. 3313.64 (B); Ohio Rev. Code Ann. 3313.48.
- Goss v. Lopez, 419 U.S. 565, 572-573 (1975).
- Id. at 569.
- Larry Bartlett and James McCullagh, Exclusion from the Educational Process in the Public Schools: What Process is Now Due?, 1993 B.Y.U. Educ. & L.J. 1 (Spring 1993).
- Goss, 419 U.S. at 579.
- Id. at 581.
- Id. at 582.
- Wood v. Strickland, 420 U.S. 308, 311 (1975).
- Miller v. Penn Manor Sch. Dist., 588 F.Supp.2d 606, 611 (E.D. Pa. 2008).
- Blue Mountain Middle School, Student-Parent Handbook 2006-2007, General Computer Usage Policy 45.
- Blue Mountain Middle School, Student-Parent Handbook 2006-2007, Internet Usage Policy 46.
- Karen Bond Coriell and Philip T.K. Daniel, Suspension and Expulsion in America's Public Schools: Has Unfairness Resulted from a Narrowing of Due Process? 13 Hamline J. Pub. L. & Pol'y 1 (Spring 1992).
- See, e.g., Ohio Rev. Code Ann. 3313.66(A) (Anderson 1990 & Supp. 1991).
- Goss, 419 U.S. at 575.
- Bartlett, supra note 9.
- Laney v. Farley, 501 F.3d 577, 579 (6th Cir. 2007).
- Bartlett, supra note 9, citing Hillman v. Elliott, 436 F. Supp. 812, 815 (W.D. Va. 1977).
- Bogle-Assegai v. Bloomfield Bd. of Educ., 467 F.Supp.2d 236, 238 (D. Conn. 2006).
- Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243, 1246 (10th Cir. 2008).
- See Matthew Block and Ray Yasser, Recognizing Procedural Due Process Rights for Suspended High School Athletes, Entertainment and Sports Lawyer (Fall 2008).
- Lowery v. Euverard, 497 F.3d 584, 585 (6th Cir. 2007).
- Crocker v. Tennessee Secondary Sch. Athletic Ass'n, 980 F.2d 382, 387 (6th Cir. 1992).
- McFarlin v. Newport Special Sch. Dist., 784 F. Supp. 589 (E.D. Ark. 1992).
- Block, supra note 25.
- See Laney, 501 F.3d 577 (6th Cir. 2007).
- Goss, 419 U.S. at 579.
- See Laney, 501 F.3d 577 (6th Cir. 2007).
- Goss, 419 U.S. 565 (1975).
- R.R. v. Bd. of Educ. of the Shore Regional High Sch. Dist., 109 N.J. Super. 337, 339; 263 A.2d 180, 181 (1970).
- Cole v. Newton Special Mun. Sch. Dist., 676 F. Supp. 749, 752 (S.D. Miss. 1987).
- Goss, 419 U.S. at 583.
reports, Spring 2009