1. Due Process

2. Due Process
A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property.
Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

3. Due Process
Arbitrary: subject to individual will or judgment without restriction; unsupported.
Capricious: subject to unpredictable change; random, erratic

4. Due Process
Fifth Amendment: no person “shall be deprived of life, liberty, or property without due process of law.” Applies ONLY TO THE FEDERAL GOVERNMENT.
Fourteenth Amendment (ratified in 1868) declares, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Limits the POWER OF THE STATES.

5. Ghosts of Mississippi Medgar Evers (1925-1963)
Assassinated by Byron De La Beckwith

6. Objectives Background: what do we mean by “due process?”
Students will be able to:
find government obligation regarding due process in the Constitution
Articulate what are the different types of due process?
Understand how much due process one gets?

7. What would be a fair procedure if the government did the following?
If the government were to put you to death.
If you could go to jail for 6 months.
If you were to get an after school detention.
If you were going to lose your driver’s license.
If you were going to be suspended for 2 days.
If you were going to be suspended for 20 days.
If you were not able to marry the love of your life.
If you were kicked off of National Honor Society.
If you denied the right to end a pregnancy? What if doctors said the birth of the child would kill the mother?
If the government took your house from you to build the last leg of 485.

8. Warm-up
Watch the following video clip, and then answer the following question: Is the state action depicted a violation of the due process clause? Why?
CPS seizure

9. Objectives/agenda Warm-up: California CPS baby seizure
Analyze: Due Process clause
Procedural due process
Substantive due process
Incorporation
Property interest
Fundamental rights

10. Due Process: Two Types Procedural Substantive
when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.
Were proper procedures followed?
Substantive
require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.
Is gov’t action justified?

11. Due Process example: Child custody dispute
Procedural
Government must give notice and a hearing before determining custody
Substantive
Government must show compelling reason demonstrating an adequate justification for terminating custody

12. Incorporation doctrine
Most of the provisions of the Bill of Rights have been incorporated by the Fourteenth Amendment to the states
What is “fair” for the Feds should be “fair” for the states
Examples include freedom of speech, press, religion, association/non-association, privacy

13. Due Process
First question to ask: has the government deprived someone of life, liberty, or property?
No deprivation, no DP issue

14. North Carolina passes a law forbidding individuals from using nail clippers to cut their nails and requiring instead that only scissors be used. Is this a DP issue?
Yes, because the state is seeking to regulate individuals in a way which affects their liberty, the law will be subject to Due Process review.

15. Maryland passes a law that all owners of cars manufactured prior to 1990 must pay an additional “collector’s tax.” Is this a DP issue?
Yes—the tax is a deprivation of property (i.e., money paid), and must pass DP review

16. Property interest
A deprivation of property occurs when a person has an entitlement and that entitlement is not fulfilled
Entitlement: reasonable expectation to continued receipt of a benefit

17. Fundamental rights
Some relation to rights of autonomy (freedom) or rights of privacy
Liberty interests
C – Contraception
A—Abortion
M—Marriage—(Same sex—varies)
P—Privacy
E— (Private Education)
R--Reproduction

18. Fundamental rights
Gov’t involvement/regulation/restriction with fundamental rights does NOT necessarily mean violation of DP clause
If gov’t can show a compelling interest
Strict scrutiny standard: state must demonstrate the compelling nature of its interest and the necessity of the chosen means.

19. Fact pattern
Massahampshire passes a law banning the use of certain forms of birth control. These forms of birth control, the state believes, have contributed to an increase in sexually transmitted diseases because they protect against pregnancy but not STDs.
Is there a compelling state interest?

20. Answer
Since STDs have a high social cost, this is a compelling state interest, says the Massahampshire legislature. If a citizen brings a substantive due process challenge to the law, the state must show that their interest in slowing the spread of STDs is indeed compelling and that an outright ban on the specified forms of contraception is necessary to achieve the goal as there is no alternative means available.

22. Goss v. Lopez

23. Goss v. Lopez What are the facts? What question is before the Court?
Did the imposition of suspensions without preliminary hearings violate the students’ Due Process rights as guaranteed by the Fourteenth Amendment?

24. Goss v. Lopez What and how did the Court decide?
5-4 vote; because Ohio had chosen to extend the right to an education to its citizens, it could not withdraw that right "on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct ha[d] occurred."

25. Goss v. Lopez What and how did the Court decide?
Ohio had to recognize students' entitlements to education as property interests protected by the Due Process Clause that could not be taken away without minimum procedures required by the Clause.
The Court found that students facing suspension should at a minimum be given notice and afforded some kind of hearing.

26. Poster project

28. Procedural due process “balancing test”
Once it is established there is a state deprivation of liberty or property, next step is to analyze necessary procedures:
The importance of the private interest affected;
Risk of erroneous deprivation through procedures used, and the probably value of any additional or substitute procedural safeguards;
Importance of state interest and any additional burdens on the state

29. Joey Ramone is a student at High School High, a public school
Joey Ramone is a student at High School High, a public school. After being caught smoking in the boys’ room by a hidden camera for the third time in a month the Principal decides to suspend him by sending a letter to that effect to his parents who then bring a due process claim against the school. The Ramones argue that, at the very least, Joey should have been given notice of the charge against him and provided an opportunity to explain.

30. Apply the balancing test to this fact pattern to determine

31. Objectives Warm-up: response to corporal punishment in schools video
1) Review the Eighth Amendment to the U. S. Constitution
2) Review Ingraham v. Wright and analyze the case and decision in light of the Eighth Amendment
3) In groups, complete fact patterns, and create your own due process fact pattern (poster)

32. Warm-up
Watch the video, and answer the following question regarding corporal punishment in schools: do you favor the use of corporal punishment in schools, or are you opposed? Are there any instances you can imagine where corporal punishment is a reasonable form of school discipline?
What if parents consent to corporal punishment?
corporal punishment

33. Corporal punishment in NC schools
The Associated Press reported on October 7, 2013 that North Carolina schools used corporal punishment 184 times in the school year, a decline from 404 incidents in , and a further decline from 891 incidents the previous year. Most incidents were in Robeson County (141).
It is “on the books” in NC public schools (but not used in CMS, so relax!)
corporal punishment in CMS

34. Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Directed toward whom?
Criminals convicted of a crime
Does it apply to students in schools?

35. Ingraham v. Wright
Let’s review the facts: What was the school policy in this case? Was this a local or state law? Describe the policy How many “licks” was standard? Describe Ingraham’s punishment

36. Ingraham v. Wright How did the Court begin their discussion?
Does corporal punishment still play a role in public schools (in 1977 and today)?
What was the common law principle governing corporal punishment?
Reasonable but not excessive force to discipline a child

37. Ingraham v. Wright
What is to be taken into account when determining whether the punishment was reasonable?
Seriousness of offense
Attitude and past behavior of the child
Nature and severity of punishment
Age and strength of the child
Availability of less severe but equally effective means of discipline

38. Ingraham v. Wright Question before the Court: Decision:
Does corporal punishment in public schools constitute “cruel and unusual punishment” and therefore violate a student’s Eighth Amendment rights?
Decision:
The Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in schools.

39. Ingraham v. Wright
The prisoner and the schoolchild stand in wholly different circumstances:
The prisoner is incarcerated in prison, which is brutal;
Only unnecessary and wanton infliction of pain constitutes “cruel and unusual” punishment
Schools are open institutions monitored by the community
The student brings the support of family and friends
Student has civil and criminal laws to protect him/her

40. Ingraham v. Wright
Law--Because of the history in this country of corporal punishment in the schools and the overwhelming majority of cases associated the protections of the 8th Amendment with prisoners, corporal punishment in a normal school setting shall not be afforded protection under the 8th Amendment.