1. Student Rights: Common Law, Constitutional Due Process, and Statutory Protections
Chapter 10

2. Student Interest Protected By:
Common law
Federal & State Constitutions
Statutes by Congress & State Legislatures

3. Common Law and the Student
What can society “reasonably” expect of students who attend public schools?
What are the limitations and restraints on the state, school officials and teachers…desired by society and required by the courts?

4. Reasonableness
Balance in common law is defined by resonableness and what is needed to bring about the common good.
What is the common good?
Define reasonableness
Means that which is proper, rational and fair.

5. In Loco Parentis In loco: In place or in lieu
In loco parentis: in the place of the parent.
Courts are comfortable with this concept.
Supreme Court in T.L.O. asserted that in loco parentis doctrine did not exempt school officials for prohibitions of 4th Amendment.

6. Wiemerslage v. Maine Township (1994)
School District Policy on “loitering” is not unconstitutionally vague or in violation of First Amendment.
A statute or regulation that is too vague and without sufficient definiteness may violate the Due Process Clause of the 14th Amendment. Vagueness is determined by the “ordinary person” test – could an ordinary person understand the statute or regulation?
A vagueness challenge must be considered in context of the rule at issue.
A disciplinary rule need not be drafted as narrowly or with the precision as a criminal statute.
Has the rule defined proscribed conduct with sufficient definiteness that an ordinary person can understand what conduct is prohibited and in such a way that it does not encourage arbitrary and discriminatory enforcement?

7. Constitutional Due Process
Due process found in 5th and 14th Amendment
Why do we have two due process clauses in the U.S. Constitution?
No state shall deprive a person of life, liberty, or property without due process of law (14th Amendment).
Two Basic Aspects:
Procedural
Substantive

8. Procedural Rights
Procedural rights protect the individual against arbitrary state action, guaranteeing a fairness of a hearing and an impartial tribunal.

9. Procedural Rights Are Set Out In:
Dixon v. Alabama Bd
Proper notice
Opportunity to be heard
Hearing conducted fairly
Goss v. Lopez

10. Substantive Rights
Substantive due process encompasses the expansive meaning of liberty and property; to generally enjoy those privileges essential to the “orderly pursuit of happiness by free men.”
Meyer v. Nebraska

11. Substantive Due Process
The phase “due process of law,” when applied to substantive rights, as distinguished from procedural rights, means that the state is without power to deprive a person of life, liberty, or property by an act having no reasonable relation to any proper governmental purpose, or which is far beyond the necessity of case to be an arbitrary exercise of governmental power.

12. Substantive Due Process
Includes
Life
Liberty
Property
In Tinker v. Des Moines the Supreme Court explicitly recognized the substantive due process rights of students.

13. Due Process Review Tinker from chpt 8
In Goss v. Lopez the Supreme Court recognized education as a property right and procedural due process must be given before depriving student of that right.

14. Conscience Shocking
Conscience shocking violates substantive due process.
Conscience shocking is determined by facts.

15. Dunn v. Fairfield Community High School District No. 225 (1998)
Two high school students were given failing grades in band class after they played two unauthorized guitar pieces at a band program.
Students played the pieces in direct defiance of school rules and their teacher’s explicit orders.
The school had a rule that prohibited band members from departing from the planned musical program during band performances and specifically forbade guitar solos during performances.
The “F” in the band course prevented one of the students from graduating.

16. Dunn continued…
Giving students an “F” for violating school rules is not violative of substantive due process where action does not shock the conscience.
Is there a valid substantive due process issue at stake where disciplinary measures are imposed on students for something unrelated to academic conduct?

17. Corporal Punishment and Substantive Due Process
20 states allow Corporal Punishment: AL, AZ, AK, FL, GA, ID, IN, KN, KY, LA, MS, MO, NM, NC, OH, OK, SC, TN, TX.
Cases focus on reasonableness of discipline.

18. The Eighth Amendment
Supreme Court said corporal punishment does not violate the Eighth Amendment.
Eighth Amendment - cruel and unusual punishment - does not apply to paddling, concerns criminal acts.

19. Liberty Interest
Supreme Court ruled “Corporal punishment implicates a constitutionally protected Liberty Interest.”
If Liberty Interest violated official may be liable under 42 U.S.C. Section 1983.
Circuit courts divided on whether Liberty Interest arises from corporal punishment.
Some circuit courts say, if punishment “shocks the conscience” then Liberty Interest is sustained.

20. Ingraham v. Wright
Cruel and unusual punishment clause or Eighth Amendment does not apply to corporal punishment in schools.
There is no deprivation of substantive rights as long as corporal punishment is with in the limits of common law privilege.
Plaintiffs had been rather severely paddled by the school principal and an assistant.

21. Ingraham continued…
As common law, a single principle has governed the use of corporal punishment in schools since before the American Revolution – Teachers may impose reasonable but not excessive force to discipline a child.
The rule is that such as a teacher or administrator “reasonably believes to be necessary for the child’s proper control, training, or education” may be used.

22. Procedural Due Process
Dixon v. Alabama established that procedural due process applies to schools
Minimal fairness
Due Process not technical concept with fixed content, flexible concept.
Due process is “fundamental fairness”.

23. Dixon v. Alabama State Board of Education
Procedural due process required for students when expelled.
Dixon was the first case of authority to apply the federal constitutional requirements of procedural due process of the Fourteenth Amendment to public educational institutions.
Before Dixon, suspensions and expulsions were routinely carried out without giving students an opportunity to tell their side of the story.
In this case, African American students had been expelled from a state college because of their part in the anti-discrimination activities.

24. Dixon continued… Prior to Dixon, Brown v. Board of Education (1954)
Brown case stated that education very important. This started to move education from a privilege to a right - a constitutional property right
Dixon established education was no longer a privilege but a property right, therefore due process required.

25. Dixon continued… Procedural due process includes, at least:
Notice, containing statement of specific charges and grounds which, if proven, would justify expulsion;
The nature of the hearing should vary depending on the circumstances of the particular case

26. Goss v. Lopez Temporary suspension requires procedural due process.
Students who had been suspended from an Ohio public school for up to 10 days without a hearing brought this action to hold the Ohio statute permitting such suspensions unconstitutional and sought order enjoining school officials from including references to the suspensions in the student's records.

27. Goss v. Lopez continued…
Substantive due process “property” interests are normally not created by the U.S. Constitution, but rather they are created and their dimensions are defined by an independent source, such as state statutes or rules entitling citizens to certain benefits.
Ohio statutes require localities to provide free education to all residents between 6 and 21 years of age. These statutes vested the students with a "property" right which could not be withdrawn without procedural due process.

28. Goss v. Lopez continued…
Substantive due process “liberty” interests of the students were implicated because the misconduct charges, if sustained and recorded, could seriously damage the students standing with fellow students and teachers and interfere with later opportunities for higher education and employment.

29. Goss v. Lopez continued…
A 10-day suspension from school cannot be considered de minimis.
Due process requires that the student be given oral or written notice of charge against him or her, and if he or she denies it an explanation of evidence must be given, and the student must have an opportunity to present his or her side of the story.

30. Goss v. Lopez continued…
There need be no delay between the time notice is given and time of hearing.
Students whose presence imposes a continuing danger to persons or property or an ongoing threat of disrupting academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable.

31. Goss v. Lopez continued…
The Court stopped short of affording the student the opportunity to secure counsel, confront and cross examine witnesses, or to call his own witnesses in a short-term suspension hearing, but if the charges were more serious, due process would become more formal.

32. Goss v. Lopez continued…
The Court said the due process requirements imposed in Goss were “if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions.”

33. Procedural Due Process
Procedural due process more formal as what government is taking away becomes more serious.
Courts have allowed hearsay evidence in student hearings.
Double jeopardy rejected by courts in school hearings.
Miranda warning does not apply in school disciplinary hearings.

34. Procedural Due Process
Charges and Evidence – Informal discussion
Cross-examination of witnesses: Courts have not allowed in student hearing except in the most extreme situations
No right to legal counsel

35. Zero Tolerance
Mandatory disciplinary measure imposed for specific offense
Goss still applies
Courts will not substitute their judgment as to the wisdom of zero tolerance policies, as long as due process not denied.
One judge said a zero tolerance policy was where school officials “jettisoned common sense”.

36. South Gibson School Bd. v. Sollman (2002)
School board’s zero tolerance expulsions and denial of class credit for possession of marijuana upheld
A school board decision will not be overturned unless it is purely arbitrary or an error of law has been made
Whether a school board should reexamine a policy is not for a court to decide

37. Sexual Harassment of Students
Title IX of Education Amendment of 1972.
Title VII of the Civil Rights Act of 1964.
Title VII designed to prevent discrimination in the work place on the basis of race, sex, religion, color and national origin.
Title IX enacted to prevent educational institutions, for sex discrimination.

38. Sexual Harassment
Sexual harassment constitutes “unwanted imposition of sexual requirements in the context of a relationship of unequal power.”

39. Two Basic Categories of Sexual Harassment:
1. Quid pro quo, by which a person in the more powerful position attempts to compel submission to sexual demands by conditioning rewards or punishment on the weaker party’s acquiescence.
2. Hostile environment encompasses adverse, offensive, unfriendly, or bellicose actions that intimidate the weaker party as a result of the harassment.

40. Deliberate Indifference
A school district may be liable under sexual harassment for damages if action amounted to deliberate indifference.
Damages available under Title IX.
Officials had actual notice and acted with deliberate indifference.
Liability limited to what school had control over.
Harassment must be severe, pervasive, and objectively offensive.
Must deprive victim of educational opportunities.

41. For a school district to be liable in damages:
(1) the relevant official of the school district must have had actual notice of the circumstances and have acted with “deliberate indifference” to the situation and (2) the situation must be such that the school had substantial control over both the harasser and the context in which the harassment occurred.
(Gebser best explains the rule of law regarding “deliberate indifference” )

42. Franklin v. Gwinnett County Public Schools (1992)
A remedy in damages is available for an action to enforce Title IX.
This case is an important and definitive interpretation by the U.S. Supreme Court as to the meaning of Title IX with regard damages for sexual harassment.
The Court ruled that damages were available for actions brought to enforce Title IX.
The fact that damages may be gained in redress for sexual harassment makes pursuit of such claims attractive for both plaintiffs and their attorneys.

43. Franklin v. Gwinnett continued…
In this case the petitioner, Franklin, a student in high school, filed an action for damages under Title IX of the Education Amendments of 1972, alleging that she had been sexually harassed and abused by a teacher.

44. Franklin case continued…
Absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.
A remedy in damages is available for an action brought to enforce Title IX absent indication in text or history of the statute that Congress intended to limit available remedies.

45. Franklin case continued…
The remedies permissible under Title IX are not limited to back pay and prospective relief; both of those remedies are equitable in nature, and the court must determine adequacy of remedy in law before resorting to equitable relief.
Equitable remedy of prospective relief was clearly inadequate because the teacher no longer taught at the school and the student no longer attended school in the school system.

46. Gebser v. Lago Vista Independent School District (1998)
Misconduct by a teacher in sexual harassment of a student does not render the school district liable under Title IX unless a school official had knowledge of the situation and responded with “deliberate indifference”.
This is a private action against a public school district by a public school student under Title IX for sexual harassment of the student by one of the district’s teachers.
Damages may not be recovered unless an official of the district who, at a minimum, has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.

47. Gebser v. Lago Vista continued…
In this case damages could not be recovered because the only information about the teacher’s misconduct of which the principal was aware was plainly insufficient to alert the principal to the possibility that the teacher was involved in a sexual relationship with a student; and
The school district’s failure to fulfill a federal regulatory requirement that school districts promulgate and advertise effective policy and grievance procedures for sexual harassment claims did not constitute deliberate indifference on the part of the school district. Moreover, the failure of the school district to promulgate such rules did not itself constitute sex discrimination under Title IX.
Forbidding sex discrimination under any education program or activity receiving federal financial assistance, is enforceable through an implied private right of action.

48. Davis v. Monroe County Board of Education (1999)
School Board may be liable for students-to-students sexual harassment but only when it acts with “deliberate indifference”

49. Davis v. Monroe County Board of Education continued…
Facts of case regarding student-on-student sexual harassment included the following:
The mother alleged that her daughter was the victim of repeated acts of sexual harassment by another student over a 5-month period;
There were allegations in support of the conclusion that the other student’s misconduct was severe, pervasive, and objectively offensive;
The mother contended that the harassment had a concrete and negative effect on her daughter’s ability to receive an education; and
The complaint suggested that the mother may be able to show:
both actual knowledge and deliberate indifference on the part of the school board, and
that the board made no effort whatsoever either to investigate or to put an end to the harassment.

50. Davis v. Monroe County Board of Education continued…
The U.S. Supreme Court found for the plaintiff parent and child holding that the harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim access to an educational opportunity or benefit.

51. Davis continued…
A public school board may be liable for sex discrimination in the form of student-on-student sexual harassment if the school board can be said to expose its students to harassment or cause them to undergo it under the school board’s programs–because the school board exercises substantial control over both the harasser and the context in which the known harassment occurs–where the misconduct occurs during school hours and on school grounds.

52. Baynard v. Malone
School administrators must be constantly aware of the possibility of sexual abuse of children.
Response to such situations must be quick and decisive.
A student was sexually abused by his or her elementary school teacher and brought suit against the principal, school superintendent, the school board, and the school board personnel director,
Asserted claims under §1983 and Title IX

53. Baynard v. Malone continued…
Evidence supported the findings that the principal had actual or constructive knowledge of the risk of sexual molestation but acted with deliberate indifference
The superintendent and personnel director did not act with deliberate indifference
The principal did not have actual knowledge of molestation or power to take remedial action on behalf of board, as required to support recovery against board under Title IX.

54. Baynard case continued…
Supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.
Such liability is not based on ordinary principles of respondent superior, but rather is premised on a recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care. 42 U.S.C.A. § 1983.

55. Baynard case continued…
To establish supervisory liability under § 1983, the plaintiff must show
that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff,
that the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices, and
that there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.

56. Baynard case continued…
A supervisory official who responds reasonably to a known risk is not deliberately indifferent, and thus may not be held liable under § 1983 even if the harm is not averted

57. Sauls v. Pierce County Schools (2005)
School official’s ineffective response in preventing a female teacher’s sexual harassment of a male student did not constitute “deliberate indifference.”

58. Child Abuse
In 1962 states started passing statutes to address child abuse and neglect.
The federal law, entitled The Child Abuse Prevention and Treatment Act was passed in 1974, providing financial assistance to states in the implementation, prevention, and treatment of instances of child abuse and neglect.

59. Links to Child Abuse and Neglect Information
Topic 2: Responding to Suspected Abuse or Neglect
Making a Report to Child Protective Services
In this section you will learn about:
Your legal requirement to report
How to fulfill that requirement
The Legal Requirement to Report:
As a teacher or administrator, you are mandated to report any suspected child abuse and neglect that comes to your attention in your capacity as a teacher. There are penalties for failure to report. You are protected from liability if your report is made in good faith.

60. Links to Child Abuse and Neglect Information
Virginia Code Section A identifies teachers as mandated reporters. (link will open in a new window)
Virginia Code Section explains your protection from liability. (link will open in a new window)
Virginia Code Section D describes the penalties for failure to report. (link will open in a new window)

61. Reporting Abuse
Whether school officials, teachers or others violate their respective statutes by not reporting cases of child abuse will usually be determined by the statutory provisions requiring that the reporter had "reasonable cause to believe," "cause to believe," or "reason to believe" that a child had been abused or neglected.

62. Arkansas Department of Human Services v. Caldwell
Reasonable force in paddling a student does not constitute child abuse.
Various state social services agencies have increasing statutory authority for the protection of children from child abusers.
Usually the authority of these agencies is asserted against abusive parents or other private individuals, yet, on some occasions the statutory authority of the social services agencies is brought to bear against teachers or administrators in the public school system.
In this case an assistant principal sought judicial review of an administrative decision by the Department of Human Services of Arkansas.
The hearing had concluded that there was credible evidence of abuse by the assistant school principal who paddled a student for smoking on school grounds.

63. Arkansas case continued…
In this case, the statutory authority of two state agencies is weighed against each other.
Under the Arkansas state statute, the School Discipline Act, any teacher or school principal may use corporal punishment in a reasonable manner against any pupil for good cause in order to maintain discipline and order in the public schools. Ark.Code. Ann. § (c) (1987).
The Human Services agency had established its own hard and fast rule that “if there is bruising, it is abusive and with bruising, we substantiate abuse.”

64. Arkansas case continued…
The court found that the bruising criterion standing alone was insufficient to constitute credible evidence of abuse.
“We do not believe that one factor, standing alone and applied as a litmus test, without consideration of all the attendant circumstances, is an appropriate measure to be used in all cases for determining whether an allegation of abuse is to be sustained.