Applications of Procedural and Substantive Due Process: Protecting the Rights of Students and Staff

Due Process  5th & 14th Amendment - no person shall be deprived of life, liberty, or property without due process of the law  - nor deny to any person within its jurisdiction the equal protection of the laws

What is Our Obligation?  To be rational, relevant, and reasonable in our judgments  To be wise in how we create and influence our school culture  To be careful to comply with district and state laws  To create safe learning places  To protect the most vulnerable from themselves and others

Procedural Due Process  Steps taken before a student can be deprived of life, liberty, or property  The student must be immediately informed at the time of infraction, or if in the case of an emergency, soon after normal conditions are restored.  The student must have an opportunity to speak his/her story.  The student must have a fair and unbiased hearing.  There must be an opportunity for appeal

Substantive Due Process  Is there a valid reason for depriving any student of life, liberty, and property?  Federal laws dictate the unalienable rights of human beings  State laws dictate a certain behavior  District guidelines dictate a certain behavior  Student handbook dictates a certain behavior

Controversies?  Uniforms v. Gang-wear?  Off campus events?  My space?  Accidental weapon?  Loco parentis?

Uniforms or Gang-wear  Littlefield v. Forney Independent School Dist., 268 F.3d. 275 (5th Cir. 2001)  Kelly v. Board of Educ. of McHenry Community High School Dist., No. 06 C 152, 2006 WL (N.D. Ill. 2006)

Off Campus Events  Shade v. City of Farmington, Minnesota, 309 F.3d (8th Cir. 2002)  Rhodes v. Guarricino, 54 F.Supp.2d. 186 (S.D.N.Y. 1999)

My Space  Layshock v. Hermitage School Dist., No. 2:06-CV-116, 2006 WL (W.D. Pa. 2006)  J.S. v. Bethlehem Area School Dist., 807 A.2d. 847 (Pa.2002)  Mahaffey v. Aldrich, 236 F.Supp.2d. 779 (E.D. Mich. 2002)

Accidental Weapon  Tarkington Independent School Dist. V. Ellis, 200 S.W.3d. 794 (Tex. Ct. App. 2006)  Butler v. Rio Rancho Public Schools Board or Educ., 341 F.3d 1197 (10th Cir. 2003)

Loco Parentis  Kirkland v. Greene County Board of Educ., 347 F.3d. 903 (11th Cir. 2003)  Setliff v. Rapides Parish School Board, 888 So2d (La. Ct. App. 2004)

Where do we go from here?  Fairness is the underlying principle of due process.  Care needs to be taken at every step in the process to protect the rights of student and staff.  The student is not an adult and needs every encouragement not to shipwreck his/her educational opportunity.  Students and staff need our support to build a healthy climate and culture that can rise to meet the challenge of this century.

References  Roth, J., D’Agostino, T., & Brown, C.(Eds.) (2007). Deskbook encyclopedia of American school law. Malvern, PA: Center for Education and Employment Law.