1. Created by the Ohio State Bar Foundation
DUE PROCESS
RESPECTING OUR RIGHTS
Created by the Ohio State Bar Foundation

2. Due Process- Respecting our Rights
Board of Education, School District No. 92 of Pottawatomie County v. Earls, Lindsay, et. al. (2011)
Created by the Ohio State Bar Foundation

3. Background Story “Student Activities Drug Testing Policy”
Participation in extracurriculars means random drug tests
Must sign off on policy
Lindsay Earls challenged policy in court

4. Background Story Fourth Amendments Rights:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5. Legal Problem Is random drug testing unconstitutional?
Does the school need probable cause to test students in extracurricular activities?
Can a student be forced to submit to random testing as a condition of participation?

6. Legal Problem Is the intrusion too significant?
Does a school restrict a student’s rights because of such a policy?
Does this policy effectively serve the school’s interest in protecting a student’s safety and health?

7. Arguments in Favor of Earls
Fourth Amendment protection
No right for mandatory, baseless urinalysis
Due process is being denied

8. Arguments in Favor of the School
School’s right to prevent drug use
Diminished expectation of privacy for students
Participation is not mandatory
Participation = acceptance of drug policy

9. Outcome Federal District Court ruled for the school
10th Circuit Court of Appeals reversed the decision
U.S. Supreme Court ruled 5-4 for the school

10. Outcome Serves the school’s need to prevent drug use
Students have limited privacy
Taking urine samples is minimally intrusive

11. Created by the Ohio State Bar Foundation
DUE PROCESS
RESPECTING OUR RIGHTS
Created by the Ohio State Bar Foundation

12. Let’s Add Due Process to the Test
Fourteenth Amendment’s Due Process Clause:
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; …”
Created by the Ohio State Bar Foundation

13. Let’s Add Due Process to the Test
Policy is constitutional
Search and seizure is constitutional
Still must get fair hearing (due process) to tell one’s side of the story

14. Let’s Add Due Process to the Test
What due process rights do students have before schools punish or dismiss them for disciplinary or academic reasons?

15. Let’s Add Due Process to the Test
Two types:
Substantive due process- Schools cannot infringe on fundamental Constitutional liberties
Procedural due process- Schools are limited on how a law is administered, applied, or enforced. Policies must be fairly applied.

16. Let’s Add Due Process to the Test
Balancing test for substantive and procedural due process- Three factors
1. Was a student given a fair hearing? Did a student get a chance to tell his side of the story?

17. Let’s Add Due Process to the Test
2. Did the student have more rights taken away because of the procedures used? For example, was a student’s drug test announced to the whole school, thus going beyond the policy’s purpose?

18. Let’s Add Due Process to the Test
3. Is the burden for the school to supply due process beyond reasonable expectations?

19. Created by the Ohio State Bar Foundation
DUE PROCESS
RESPECTING OUR RIGHTS
Created by the Ohio State Bar Foundation

20. Due Process - Respecting our Rights
Historical Case
Goss v. Lopez (1975)
Created by the Ohio State Bar Foundation

21. Background Story Protesting the Vietnam War at Central High School
School property was damaged
75 students suspended

22. Background Story
No hearings for suspensions- Ohio law did not require hearings
Dwight Lopez was innocent bystander
No explanation for his suspension

23. Background Story Many suspensions were for 10 days Parents sued
The Supreme Court of Ohio ruled the law was unconstitutional
School officials appealed to U.S. Supreme Court

24. Background Story Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

25. Legal Problem
Does the Fourteenth Amendment’s Due Process Clause extend to students?
Were the students’ rights to due process violated when they were not given a hearing before the suspensions?

26. Legal Problem
Does the school’s need to protect students override due process in emergency situations that demand swift actions by officials?

27. Arguments in Favor of the School
Schooling is a state responsibility
No constitutional right to education- no right to due process
10 days is not a severe loss
Ohio law permits suspension for misconduct
Misconduct occurred

28. Arguments in Favor of Lopez
Guaranteed free education
Cannot withdraw education if misconduct can’t be determined
10-day suspension is dangerous and severe punishment

29. Arguments in Favor of Lopez
Notify students of rules they are breaking
Confront their accusers
Due process protects all citizens- students included

30. Outcome Supreme Court rules 5-4 for students
Students are citizens- deserve protection
Arbitrary suspensions- unconstitutional
10-day suspension- deprives “life, liberty, or property”

31. Outcome Dissenting justices:
Suspensions are “insignificant infringement of education.”
Different rights and duties between adults and children
Discipline is part of functioning school

32. Created by the Ohio State Bar Foundation
DUE PROCESS
RESPECTING OUR RIGHTS
Created by the Ohio State Bar Foundation

33. Judging the Fourteenth Amendment
Present Day Realities
Judging the Fourteenth Amendment
Created by the Ohio State Bar Foundation

34. Background Story Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

35. Background Story 14th Amendment was added to Constitution in 1868
A Reconstruction Amendment (added after Civil War)

36. Background Story Citizenship Clause- Rights of an American
Equal Protection Clause- all citizens
Due Process Clause- enforcing legal rights owed to all citizens

37. Background Story Constitution- rigid but not stagnant
Over 200 years- 17 more Amendments after the Bill of Rights
Government powers- only those granted in Constitution

38. Background Story
Government makes decisions how to carry out granted powers- “Reasonable Construction”
Decisions not easy
Right and wrong not always clear

39. Asking Fourteenth Amendment Questions
Who is protected by due process?
Does it protect immigrants? Should it?

40. Asking Fourteenth Amendment Questions
What is an impartial due process hearing?
If you are going to be suspended or expelled from school, should administrators only be making the decision as they hear your case?

41. Due Process Questions
Should the government provide lawyers during due rights hearings to the person whose rights are being questioned?
Should terrorism suspects, such as those at Guantanamo Bay, have due rights protection?

42. Asking Fourteenth Amendment Questions
What procedures should be required before a student be dismissed for academic failure?

43. Asking Fourteenth Amendment Questions
Should due process be applied when interviewing for a job, college admission, or scholarship aid, especially if you are turned down?
Should you be told why?

44. Asking Fourteenth Amendment Questions
Can you be dismissed from a job without due process?

45. Due Process Questions
The Patriot Act is a law passed to prevent and punish terrorist acts against the United States by letting law enforcement have extra powers.
Is the Patriot Act in conflict with due process in any way?

46. Asking Fourteenth Amendment Questions
Due process supporters often contend it is better to let 10 guilty people go than convict one innocent person. How do you respond to this statement?

47. Asking Fourteenth Amendment Questions
Are your due process rights denied if you sit in the office during a class because you are misbehaving?