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Due Process
CENTER FOR LAW AND EDUCATION
515 Washington Street
Boston, MA 02111
(617)451-0857
(202) 986-3000
Students with Disabilities and the Right to Due Process in School Discipline
In the area of school discipline eligible students with disabilities not only have significant rights under the Individuals with Disabilities Education Amendments of 1997. 20 U.S.C. 1412(a)(1)(A), 1415(j), 1415(k), the right not to be discriminated against under Section 504 of the Rehabilitation Act , 29 U.S.C. 7994, 34 C.F.R. 104.4(b), but, as all other students attending public education programs, they possess basic constitutional protections. Entitlement to public education has long been recognized as a property interest protected by the Due Process clause of the Fourteenth Amendment to the U.S. Constitution. Goss v. Lopez, 419 U.S. 565, 573-75 (1975).
A. Procedural Due Process
1. Whether Due Process Protections Apply: Protected Property Interests
Under the due process clause of the Fourteenth Amendment states may not deprive any person of life, liberty, or property without due process of law. Protected property rights are created by such sources as state statutes granting persons certain benefits. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). In Goss v. Lopez, the seminal case establishing the due process rights of students in public school disciplinary proceedings, the Supreme Court held that students had a property interest in education that required minimal due process protections before any disciplinary suspension could be imposed. 419 U.S. 565, 573. The Court found that the property interest in education derived from an Ohio state statute providing free public education to all children from 5 though 21 years and requiring compulsory education for a minimum of 32 weeks per school year. Id., at 573. Virtually all states have similar state laws entitling children to the benefits of public education and compelling attendance.
Based on Goss, therefore, students have a property interest in public education that cannot be denied or otherwise taken away through disciplinary suspension or expulsion without due process of law. 419 U.S. at 574.
In Goss the Court rejected the school district's defense that the suspension was too short to be significant, finding the interest a protected one: "in determining 'whether due process requirements apply in the first place, we must look not to the "weight" but to the nature of the interest at stake.' " Id. at 575-76 (emphasis in original) (quoting Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972). The Goss Court held that when a student is threatened for disciplinary reasons with possible suspension and other punishments affecting access to education, the student must receive oral or written notice of the charges against him, an explanation of the facts against him, and an opportunity to present his side of the story. Id., at 581. The Court did not require that a formal hearing be held, suggesting that such a hearing would be expensive and would harm the effectiveness of the teaching process. Id., at 583.
Consistent with Goss, courts have determined that when sanctions effectively deny students access to education, students are deprived of protected property rights, and thus, must be provided due process protections. See, e.g., Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1st Cir. 1988) (long-term suspension affected student's interest in pursuing education that is protected by the Fourteenth Amendment); Cole v. Newton Special Municipal Separate School District, 676 F.Supp. 749, 752 (S.D. Miss. 1987), aff'd without opinion 853 F.2d 924 (5th Cir. 1988)(suspension followed by in-school isolation in an alternative setting for remainder of term; relying on Goss for the proposition that exclusion from the educational process is the key issue). The district court in Cole stated: "The primary thrust of the educational process is classroom instruction; therefore minimum due process procedures may be required if an exclusion from the classroom would effectively deprive the student of instruction and the opportunity to learn." 676 F.Supp. At 752.
On the other hand, in Zamora v Pomeroy, 639 F.2d 662 (10th Cir. 1981), the appellate court held that the temporary removal and assignment of a student to an alternative educational school did not rise to a constitutional violation and thus did not invoke the court's jurisdiction. Id., at 670. It is noteworthy that the court only reached this conclusion after finding that the plaintiff student's basic due process rights had been met and were satisfied. Id., at 668. Considering the seriousness of the infraction by the student who had been found in possession of marijuana, the court ruled that because the plaintiff was continuing to receive education, and was not deprived of any benefit other than removal from the baseball team, that the disciplinary sanction did not violate a protected interest. At 670. Similarly, in Navarez v. San Marcos Consolidated Independent School District, 111 F.3d 25, 26-27 (5th Cir. 1997), the Court of Appeals for the Fifth Circuit found that there is no property right to participate in a particular curriculum and thus, transfer to another school for disciplinary reasons does not invoke federal court jurisdiction. Id., 26-27. Again, the court found that a constitutional question was not raised because the student was never denied access to public education. Id.
More recently, in a case where a student was subjected to a short suspension of three days, a court, nonetheless, looked first to the cumulative effect of the suspension and other sanctions on the student's access to education. Next the court indicated that if a student's being denied access to education meant being unable to participate in class discussion, to hear class lectures, to take notes in preparation for exams, such loss of meaningful opportunity might rise to a deprivation of a property interest and, therefore, require procedural due process protections. In assessing whether constitutional protection were warranted, the court held that the entire punishment imposed on the student must be considered as a whole, not as separate elements. Accordingly, in Riggen v. Midland Independent School District, MO-99-CA-66 (W.D. Tx. 2/23/2000), the court held that the "entire punishment of three days suspension, five days assignment to [Alternative Education program], and requiring two letters of apology [as a condition of participating in graduation exercises], is sufficient to implicate his protected property interests in education and invoke minimum Due Process protections,..." although the plaintiff was not expelled and only received a short suspension. Id., at 22. Citing Goss v. Lopez, 419 U.S. at 576 : "Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation , which is also implicated, is so insubstantial that suspension may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary."
2. What Process Is Due?
Concluding that the impact of suspensions on protected interests was "not de minimis" (at 419 U.S. at 576), the Court in Goss addressed the issue of what process is due. It detailed the form of notice and hearing generally applicable in suspensions of up to ten days to avoid "unfairness or mistaken findings of misconduct. . ." (id., 419 U.S. at 581). The notice must inform the student of "what he is accused of doing and what the basis of the accusation is," id. at 582, and that the hearing must provide the student with "an opportunity to present his side of the story," id. at 581. By definition, a due process hearing requires an impartial decision maker. Gorman v. University of Rhode Island, 837 F.2d 7, 15 (1st Cir. 1988). Moreover, where the fact of misconduct is not in dispute, a student must still have "the opportunity to characterize....conduct and put it in what he deems the proper context." Id., 419 U.S. at 584. This latter point is significant - even when there is no dispute as to the existence of misconduct, as when a student has admitted the act at issue, the student has a right to a hearing on the appropriateness of the penalty, for "things are not always as they seem to be....." Strickland v. Inlow, 519 F.2d 744, 746 (8th Cir. 1975), quoting Goss, 419 U.S. at 584. See also, Colvin v. Lowndes County, Mississippi School District, N.D.Miss. 2/24/2000; court relied on Lee v. Macon, 490 F.2d 458 (5th Cir. 1974) to vacate expulsion finding formalistic acceptance of principal's request as to scope of punishment without independent Board consideration on penalty to be less than full due process; student with ADHD whom school had failed to evaluate, despite knowledge, challenged expulsion under 'zero tolerance' policy; court found no basis for overturning 'no manifestation determination', but found violation of due process when school board had failed to exercise independent consideration of facts and circumstances of student's case prior to invoking punishment.
In ruling that any student suspended for a period of ten days or less was entitled to oral or written notice of the charges against him, an explanation of the evidence against him, and an opportunity to be heard, the Goss Court acknowledged that the notice and hearing may occur simultaneously, but, unless a student's "presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process", the "notice and hearing should precede removal of the student from school." Id., 419 U.S. at 582. In those limited instances "the necessary notice and rudimentary hearing should follow as soon as practicable...."Id., 419 U.S. at 582-83.
The Court acknowledged the importance of leaving education in the hands of local authorities, the need for suspension as a disciplinary tool, and the interests of the school in maintaining efficiency and control. Id., at 577-83, but underscored that one-sided procedures were imperfect and risked unfairness. Id., 419 U.S. at 581. The Court did not go so far as to require an opportunity "to secure counsel, to confront and cross examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident." Id., 429 U.S. at 583. Rather, consistent with the facts before it, the Court only addressed suspension not in excess of ten days, and set forth guidelines as the minimum process required for the imposition of short suspensions in school disciplinary matters. There was nothing to indicate that the Court considered these limited procedures exhaustive. To the contrary, the Court allowed that the Due Process clause is practical; thus, depending upon the nature of the case, more formal procedures may be required "in unusual situations, although involving only a short term suspension...." Id., 419 U.S. at 584. See, e.g., Riggen v. Midland Independent School District, MO-99-CA-66, (W.D. Tx. 2/23/2000) [2000 U.S. Dist. Lexis 2639].
3. When Are More Rigorous Procedures Required?
As Goss recognized, certain unusual cases involving short-term suspensions may necessitate greater protections, and "[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. " Id., 419 U.S. at 584; Jackson v. Franklin County School District, 806 F.2d 623, 631 (5th Cir. 1986). The type of notice and kind of hearing, the rights accorded the student at the hearing and the formality of the hearing depend upon the nature of the charge and the seriousness of the penalty. Goss, 419 U.S. at 578-80, 584; Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976).
In Mathews v. Eldridge, decided a year after Goss, the Court set forth three factors for consideration in resolving the question: what process is due? The three factors are: the seriousness of the property or liberty deprivations, i.e., the private interest that will be affected by the official action; the risk of erroneous deprivation of a protected interest if the existing procedures are used, and the value, if any, of using additional or alternative procedural safeguards; and last, the government's interest, including the function involved, and the fiscal and administrative burdens of undertaking additional/alternative procedures. The Court's three part balancing test requires greater procedural rights as the severity of the deprivation increases. Yet, few courts, after applying the Mathews test in the context of lengthy suspensions and expulsions, and thus, balancing the student's private interest and the school's public interest to determine if due process requires trial type procedures, have ruled in such way. Instead, the courts have suggested that the value of such trial-type rights, including the right to confront and cross examine witnesses, is minimal. See, e.g., Newsome v. Batavia, 842 F.2d 920 (1989) Or,.courts have found the additional procedures are either too cumbersome and intrusive into the educational process, or would not reduce significantly the risk of an erroneous deprivation of rights." Jaska v. Regents of University of Michigan, 597 F. Supp. 1245, 1254 (E.D. Mich. 1984), aff'd, 787 F.2d 590 (6th Cir. 1986).
A substantial body of law has developed as parties seek to contest the specific elements of due process that are in fact due. There is disagreement as to what procedural protections school officials should provide students who are expelled from school. For the most part, courts have been reluctant to expand students' procedural rights. See e.g., Newsome v. Batavia Local School District, 842 F.2d 920, 924 (6th Cir. 1988) Recently, for example, the Eighth Circuit Court of Appeals admonished that courts should exercise "care and restraint" in reviewing a school's disciplinary decisions for due process violations: "Although students do not shed their constitutional rights at the schoolhouse gate, the Supreme Court has observed that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures. Given the flexibility afforded schools in this area, we must enter the realm of school discipline with caution." Woodis v. Westark Community College, 160 F.3d 435, 438 (8th Cir.1998)(citations omitted).
One federal appellate court ruled that a student expelled for the remainder of a semester on drug allegations was not entitled to cross-examine student accusers, learn their identities, or cross-examine school officials. Newsome v. Batavia Local School Dist., 842 F.2d 920, 924-26 (6th Cir. 1988) That court also approved the participation of the investigating administrators in the closed deliberations of the school board -- deliberations the student and his attorney were not allowed to attend. Id, at 926-27. The court did find a due process violation, however, because the closed deliberations included new evidence not divulged to the student. Id. at 927.
On the other hand, a recently decided case, Riggan v. Midland Independent School District, MO-99-CA-66, W.D>Tx. 2/23/2000) was characterized by the court as one of the "unusual" cases involving a short-term suspension that requires something more than rudimentary procedures. In this case, a high school student challenged the cumulative disciplinary sanctions imposed upon him (3 days' suspension, placement in a separate alternative education program apart from his peers, class instruction, graduation conditioned on writing letter of apology), after being accused by the principal of having taken a photograph of the principal's automobile parked outside the home of a female teacher, being the source of rumors of a sexual nature, making for distribution T-shirts with photograph of principal. The court denied, in part, the school district's motion for summary judgment, finding that issues of material fact were successfully raised by the student who argued that he was denied the right to adequate prior notice informing him of the charges against him, to have a meaningful opportunity to present evidence and to present witnesses; the right to prior notice of the school's evidence against him and to review evidence being relied upon; right to a decision-maker who is unbiased, right to a fair hearing (untainted by bias); right to confront and cross examine witnesses; right to review through grievance procedure that was capable of curing prior denials of rights; right to have proper presumption/burden of proof apply; right not to incriminate oneself right to First Amendment protections.
Because some states statutorily mandate rather extensive safeguards, including a right to legal counsel, examination of records, presentation of evidence, and cross-examination of witnesses, it is important that attorneys representing students in school discipline matters examine their state laws.
B. Due Process and the Potential Conflict with the Manifestation Determination Provision under the Individuals with Disabilities Education Amendments of 1997
The IDEA Amendments of 1997, 20 U.S.C. 1400 et seq., expressly address disciplinary exclusion for the first time. The Act includes discipline provisions pertaining to students with disabilities who are found in possession of weapons or illegal drugs [20 U.S.C. 1415(k)(1), (2)], the rights of those students who have not yet been identified as eligible under the IDEA [20 U.S.C. 1415(k)(8)]; students who are suspended for ten school days or less [20 U.S.C. 1415(k)(1)(A)(i)]; and, those students who are unable to demonstrate that a manifestation exists between their behavior and disability. [20 U.C.S.1415(k)(4), (5).]
Because all students with disabilities enjoy a protected property interest in public education, they are entitled to procedural due process protections under the Fourteenth Amendment in any discipline related matter that results in the denial of access to education. The constitutional right to procedural due process is raised whenever a student with a disability is subject to exclusion from school through suspension, expulsion or other removal under the IDEA, including, arguably through "changes in placement," and transfers to "interim alternative education placement." While the right to procedural due process in most instances supplements federal statutory protections under the IDEA Amendments of 1997, a potential area of conflict exists for children with disabilities whose behavior is subject to a manifestation review to the degree it is assumed that the student whose behavior is the subject of the review, has, in fact, performed the conduct or behavior.
Under section.1415(k)(4) before school personnel can exercise their enhanced authority to exclude any student with a disability, who violates school rules or the discipline code, to the same extent as a non-disabled student is sanctioned, they must determine whether or not the behavior or conduct at issue is related to the student's disability. 20 U.S.C. 1415(k)(4), (5). The manifestation review must be conducted within ten days of the incident by the IEP team and other qualified persons who can make a finding of no manifestation only after considering all relevant information, including evaluation and diagnostic results, and any information from the child's parent, observations about the child, the child's IEP and placement; and then determines that the IEP and placement are appropriate and special education and related services consistent with the child's IEP are being implemented. 1415(k)(5)(A). The manifestation review team must ensure that the child's disability did not impair his/her ability to understand the impact and consequences of the behavior that is subject to disciplinary action or impair the ability of the child to understand the impact and consequences of the behavior at issue. 1415(k)(4)(C).
If no manifestation is found to exist between the student's behavior and his/her disability, the student with the disability can be subject to the same disciplinary exclusion, including exclusionary suspension and expulsion, as non-disabled youth. 20 U.S.C.1415(k)(5).(A). [Note, however, section 1412(a)(1)(A) creates an ongoing duty to provide the child with the disability their right to a free appropriate public education. 20 U.S.C.1412(A)1)(A).]
The manifestation review, by its very nature and purpose, is at odds with the constitutional right to procedural due process in school discipline. Due process requires that any student who may be subject to a sanction that deprives the student of his/her property interest in education, has a right to be informed of the charges against him/her, and an opportunity to be heard and to tell his/her side of the story. As discussed above, the more serious the nature and severity of the sanction, the greater the rights accorded the student, including, e.g., to counsel, to confront and cross examine witnesses. On the other hand, the manifestation review team begins with the assumption that the student, whose behavior is being examined, has, in fact, engaged in the behavior or misconduct that is at issue. The manifestation team's inquiry is directed at whether the offending behavior is related to the student's disability, whether the student's IEP identified this need and was developed to address this issue and, if yes, whether the IEP was being implemented. Consequently, to protect a student's constitutional due process rights under Goss, as well as more extensive protections that the student would presumably be entitled in this situation, e.g., the student's right not to incriminate him/herself, the student must be provided a separate and prior opportunity to be heard, and to refute the allegations against him/her with such safeguards as commensurate with te nature and severity of the charges. Moreover, at least where there is a factual dispute about whether the student did or did not engage in the conduct or activity, this issue should arguably be fully resolved through the appeal level if necessary, prior to any manifestation determination that assumes the student's guilt, i.e., that he engaged in the conduct that is at issue, thereby tainting the hearing and any further proceedings.
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