Common Law, Due Process & Statutory Protection Students directly benefit from the 14 th Amendment The school, as a governmental agency, will act impartially as a neutral decision-maker is protecting the interests of the student while advancing the social interests of the state Common Law and the Student In loco parentis Relationship established by the courts Students have an obligation to the school Reduction of individual freedom = common good “Harmony of interests”

Common Law, Due Process & Statutory Protection Reasonableness Jurisdictional reach of the school’s authority Nature and degree of discipline Proper/rational/fair vs. immoderate/excessive

Common Law, Due Process & Statutory Protection Constitutional Due Process Procedural—prescribed constitutional procedures Proper notice—opportunity to be heard; hearing must be fair and impartial Capacity of the process to reveal more information Substantive due process State must have a valid objective Means must be reasonable

Common Law, Due Process & Statutory Protection The phrase “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] arbitrary (p. 506)

Common Law, Due Process & Statutory Protection Substantive due process Content and substance of the Constitution Implicit moral and human rights Based on education as a property interest Standards come from context “Modified natural law” (e.g, the application of the 14 th Amendment)

Common Law, Due Process & Statutory Protection Property interests are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that secure certain benefits and that support claims of entitlement to those benefits (p. 508)

Common Law, Due Process & Statutory Protection “More specific” provision Does not allow the use of a substantive due process claim if it can be couched in a more specific provision elsewhere in the Constitution (e.g., free speech for 1 st Amendment or 4 th Amendment for searches)

Common Law, Due Process & Statutory Protection “Conscience shocking” No “more specific” Allegations constitute invoking substantive due process The action is arbitrary Circumstances and context

Common Law, Due Process & Statutory Protection Extension of Substantive Due Process Freedom of association (1 st Amendment) Voting and elections (5 th and 14 th ) Mobility and interstate travel (multiple) Fairness in criminal proceedings (5 th and 14 th ) Deprivation of life, liberty, or property (Due process) Privacy (due process)

Common Law, Due Process & Statutory Protection Corporal Punishment Focus on degree and reasonableness Good faith standard Safety of the student is most compelling 8 th Amendment Connection to substantive due process

Common Law, Due Process & Statutory Protection Procedural Due Process Rule against bias (you do not judge your own case) Right to hearing 5 th and 14 th Amendments In loco parentis Disciplinary actions may be unconstitutional

Common Law, Due Process & Statutory Protection Procedures for deprivation of a protected interest The interest affected by the action The capacity of the process to reveal more information Burden on the school Flexible and non-fixed Property and liberty (reputation)

Common Law, Due Process & Statutory Protection Zero Tolerance Does not negate due process Possibility of arbitrary and capricious actions Guilty act AND a guilty mind Districts will usually prevail “Courts will not substitute their judgment as to the wisdom of zero tolerance policies so long as student process rights are not denied.”

Common Law, Due Process & Statutory Protection Sexual Harassment Title IX & Title VII of the Civil Rights Act “Unwanted imposition of sexual requirements in the context of a relationship of unequal power.” Quid pro quo and “hostile environment” Institutional liability—official actions vs. individual actions

Common Law, Due Process & Statutory Protection Child Abuse Child Abuse Prevention and Treatment Act (1974) Definitions of abuse and neglect Mandated reporting “good faith” immunity Penalties and damages for non-reporting