Goss v. Lopez: Due Process Rights in School Disciplinary Proceedings, Exams of Law

Download Goss v. Lopez: Due Process Rights in School Disciplinary Proceedings and more Exams Law in PDF only on Docsity! DUE PROCESS IN SCHOOL DISCIPLINE: THE EFFECT OF GOSS v. LOPEZ INTRODUCTION The importance of education has long been recognized in the United States. It has been suggested that the right to public educa- tion is a "fundamental" right' and few would disagree that the value of a high school diploma is a sine qua non of economic pros- perity, if not economic survival.2 In recent years, courts have been faced with the question of whether there does in fact exist a right to receive a public education, and when and under what circum- stances can the right be withdrawn. The withdrawal or deprivation of access to education may take many forms, i.e., racial discrimina- tion, poverty, geographical or linguistical barriers. One form receiving a great deal of attention of late is school discipline in the form of suspension or expulsion of the student from school. The authority vesting school administrators with the power to discipline students has deep roots. This power stems from both statutes and from what the courts have termed inherent power.4 It has always been within the province of school authorities to pro- vide by regulation for the prohibition and punishment of acts calculated to undermine the school routine-such authority is neces- sary and proper.5 The cases discussing the school's power to discipline have repeatedly focused on two main issues: does the due process clause of the 1. Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241, 96 Cal. Rptr. 604 (1971), cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). 2. Sullivan v. Houston Independent School Dist., 333 F. Supp. 1149, 1172 (S.D. Tex. 1971), vacated, 475 F.2d 1071 (5th Cir. 1973). 3. See, e.g., OHno Rsv. CoDE § 1313.66 (1974). 4. See, e.g., Tate v. Bd. of Educ. of Jonesboro, Ark., Special School Dist., 453 F.2d 975 (8th Cir. 1972), where the court held school authorities have inherent authority to maintain order and hence have latitude and discretion in formulating rules and regulations and general standards of conduct. 5. Banks v. Bd. of Pub. Instruc. of Dade County, 314 F. Supp. 285, 289 (S.D. Fla. 1970), vacated, 401 U.S. 988 (1971) (for entry of a fresh decree so that a timely appeal might be taken), affd, 450 F.2d 1103 (5th Cir. 1971). June 1975 Vol. 12 No. 4 [VOL. 12: 912, 1975] Comments SAN DIEGO LAW EVIEW fourteenth amendment apply to education and if so, what procedural steps must be taken by school authorities to satisfy due process. Some courts have been reluctant to face the first issue head on. Instead they have chosen to "assume arguendco" that it did apply and then proceed to deal with what steps were necessary to satisfy the due process clause. Courts which have faced the question of whether the due process clause applies to school disciplinary hear- ings have held both ways.7 Until recently, the United States Su- preme Court had declined to hear the issue.8 This changed, however, with the Court's five to four decision in Goss v. Lopez,9 where the Court held that the due process clause does apply to school disciplinary proceedings.' 0 This Comment will analyze Goss and compare it with the case law developed in the lower courts. The Goss decision dealt only with short term suspen- sion of students; however, the importance of long term suspension and expulsion warrants discussion with Goss. While the school discipline issue affects all forms of educational instruction from the elementary level to the college and university level, this Comment is limited to elementary and secondary educational institutions. DUE PROCESS AND SCHOOL DIscIPLINE Any discussion of school discipline in light of the due process clause must begin with an understanding of the type of interest protected by the due process clause. The fourteenth amendment provides in part: "No state shall deprive any person of life, liberty, or property, without due process of law."' " There is little doubt 6. See, e.g., Tate v. Bd. of Educ. of Jonesboro, Ark., Special School Dist., 453 F.2d 975 (8th Cir. 1972); Farrell v. Joel, 437 F.2d 160 (2d Cir. 1971). 7. For those holding the due process clause applied to school discipli- nary proceedings see Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973), va- cated and remanded, 95 S. Ct. 992 (1975); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961); De Jesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972). Those finding the due process clause did not apply, see Murray v. West Baton Rouge Parish School Bd., 472 F.2d 438 (5th Cir. 1973); Dunn v. Tyler, 460 F.2d 137 (5th Cir. 1972). 8. See, e.g., Linwood v. Bd. of Educ., City of Peoria, 463 F.2d 763 (7th Cir. 1972), cert. denied, 409 U.S. 1027 (1972); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961). 9. 95S. Ct. 729 (1975). 10. Id. at 737. 11. U.S. CONsT. amend. XIV, § 1. student is suspended or expelled. There is general agreement among the courts that a distinction exists, with respect to what procedure will satisfy due process, between expulsion or long-term suspension 0 and short-term suspension.3 1 In expulsion cases mod- em courts have uniformly held some type of hearing is necessary. 2 Students facing suspension have not found this same uniformity with respect to a hearing prior to their suspension. The leading case until Goss dealing with the due process issue in school was Dixon v. Alabama State Board of Education.3 While Dixon dealt with a college student, it has been cited as authority in numerous elementary and secondary school cases. In Dixon, the court was faced with the expulsion of a black college student for participating in a "sit-in" at a white lunch counter. There was no notice of the school's intention to expel nor was there a hearing regarding it. The court held the due process clause applied to expulsion from the state college and went on to state that "the minimum procedural requirement necessary to satisfy due process depends upon the circumstances and the interest of the parties involved. '5 4 The Dixon court considered the relative interest of the student on the one hand and the college on the other and found that the power of the government to expel is not unlimited and cannot be arbitrarily exercised. The possibility of arbitrary action is not excluded by the existence of reasonable regulations. There may be arbitrary application of the rule to the facts of a particular case, such a result is inevitable when the board hears only one side of the issue.3 5 The court then set forth the following five standards which it felt would decrease the possibility of arbitrary decisions and afford the student minimum due process protection: 1. Notice of specific charges and grounds against the student. 2. A hearing, the nature of which should vary depending upon the circumstances of the particular case. 3. The student should be given the names of the witnesses against 30. Expulsion is a final separation from an institution, and suspension is a temporary one. John B. Stetson Univ. v. Hunt, 88 Fla. 510, 102 So. 637 (1924). The phrase short-term suspension is used in reference to separation from school for ten days or less. 31. Lee v. Macon County Bd. of Educ., 490 F.2d 458 (5th Cir. 1974), where the court stated that "[w]hen a serious penalty is at stake a school board must provide a higher degree of due process than when the student is threatened only with a minor sanction." Id. at 460. 32. See, e.g., De Jesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972). 33. 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961). 34. Id. at 155. 35. Id. at 157. [VOL. 12: 912, 1975] Comments SAN DIEGO LAW REVIEW him and an oral or written report on the facts to which each witness testifies. 4. The student should be given an opportunity to present his own defense against the charges. 5. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student.8 6 These standards while varied to certain degrees in the cases fol- lowing Dixon, have nonetheless formed the basis of the due process law with respect to school disciplinary hearings. The Dixon stand- ard requiring a hearing left the nature of the hearing to be determined by the facts of each individual case. Much of the -liti- gation in this area has been directed at this issue: given the facts, was the "hearing" provided adequate?37 THE HEARING A hearing should serve two functions. First, it should determine whether or not the student in fact did the act he is alleged to have committed. Second, it must designate the appropriate discipline in light of the offense committed. The hearings employed by various schools range from a willing- ness to answer questions from the students after they were informed they had been suspended" to a "full-dress" formal hear- ing with counsel present.39 Whether a student receives a formal hearing or an informal conference and whether the type of hearing provided will satisfy due process in a particular case depends on two factors. The factors arise out of the hearing's functions and create a floating scale due process.40 The first is that the greater the degree to which the material facts surrounding the event are in dispute the more extensive and important the fact finding func- 36. Id. at 158-59. 37. See, e.g., Baker v. Downey City Bd. of Educ., 307 F. Supp. 517 (C.D. Cal. 1969). 38. Tate v. Bd. of Educ. of Jonesboro, Ark. Special School Dist., 453 F.2d 475 (8th Cir. 1972). 39. Linwood v. Bd. of Educ., City of Peoria, 463 F.2d 763 (7th Cir. 1972), cert. denied, 409 U.S. 1027 (1972). The hearing in Linwood involved the expulsion of a student. It was held before a local attorney who had been appointed as a hearing officer. A court reporter was present and the stu- dent was represented by counsel with cross-examination of adverse wit- nesses allowed. 40. See Cafeteria Workers Local 473 v. McElroy, 367 U.S. 886, 895 (1961). tion of the hearing becomes.41 As the court in Bett v. Board of Education, City of Chicago42 stated: Since the student admitted setting false alarms [the misconduct with which she was charged] the function of procedural protection in insuring a fair and reliable determination of the retrospective factual question whether she in fact did it is not essential.43 The student need not admit his wrongdoing for the fact finding aspect of the hearing to become less important. The classical situation arises when the misconduct takes place in front of the school official vested with the authority and duty to discipline the students. Here, a determination of the facts and whether the student violated the rule would be a needless step in the disciplinary process.44 This, however, is not the typical situa- tion. Rather, in the usual situation the misconduct will take place in front of other students, teachers, or go unobserved. In this con- text, the disciplinarian will not have firsthand knowledge of the facts and the fact finding aspect of the hearing is of utmost importance and requires a more formal approach. 45 Another type of activity which may result in suspension or expul- sion arises in connection with a student's off-campus conduct. A factual situation presented in several cases involves demonstrations by students off campus resulting in their arrest.40 Basing a suspen- sion or expulsion on the mere fact of an arrest, does not meet the due process requirement of a fact finding hearing because so doing assumes that the conduct which resulted in the arrest was of a type which schoof officials have authority to punish even though it did not take place on campus. In each of the situations mentioned above a transmission of facts or evidence to the disciplinary officials must occur. The accuracy of the transmission and the credibility of the person transmitting the information raises issues which can only be adequately tested if the student has an opportunity to present his side of the story.47 41. See, e.g., Bett v. Bd. of Educ. of the City of Chicago, 466 F.2d 629 (7th Cir. 1972). 42. Id. 43. Id. at 633. 44. See Farrell v. Joel, 437 F.2d 460 (2d Cir. 1971). 45. De Jesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972). 46. See Dixon v. Alabama State Bd. of Educ., 294 F.2d 450 (5th Cir. 1961); Hobson v. Bailey, 309 F. Supp. 1393 (W.D. Tenn. 1970). 47. The need for some type of fact finding hearing is revealed all too clearly in the case of Strickland v. Inlow, 485 F.2d 486 (8th Cir. 1973), va- cated and remanded, 95 S. Ct. 992 (1975), where three students were sus- pended without a hearing for possession and use of intoxicating liquors. The students, in a homemaking class, "spiked" (24 oz. of malt liquor in a gallon and a half of punch) the punch being served at a school party. [VOL. 12: 912, 1975] Comments SAN DIEGO LAW REVIEW [Tlhe principal of a public school may suspend a pupil from school for not more than ten days. Such ... principal shall within twenty-four hours after the expulsion or suspension notify the parent or guardian of the child, and the clerk of the board of education in writing of such expulsion or suspension including the reasons therefore.61 The statute goes on to provide a procedure for appealing expulsions but no procedure is provided for suspended students. The appel- late procedure consists of a hearing before the board of education. The misconduct for which the students were suspended arose out of racial unrest at Marion-Franklin High which for the most part consisted of disruptions during various assemblies and homeroom periods. Each student was summarily suspended with a letter be- ing sent home to inform the students' parents of their suspension. It appears from the facts that in each case the official issuing the suspension had firsthand knowledge of the misconduct involved. 62 The lower court held that the state-created entitlement to an education was a liberty protected by the due process clause of the fourteenth amendment. 8 Athough the court recognized that school officials are better suited to make decisions affecting their institutions, it nonetheless felt constitutionally bound to insure that the student be afforded the minimum procedural process mandated by the Constitution.64 The court then set forth the minimum pro- cedural requirements necessary to satisfy due process in the temporary suspension situation where a need for immediate re- moval of the student is presented. When such a need arises and the student is removed, the school must: 1. Send written notice of the removal to the student and parents of the reason(s) for the removal and the proposed suspension within twenty-four hours after removal. 2. Not later than seventy-two hours after the actual removal, the student and his parents must be given an opportunity to be pre- sent at a hearing before a school administrator who will deter- mine if a suspension should be imposed. 61. Id. at 1282. 62. Id. at 1284-91. There appears one exception to this in the case of plaintiff Betty Crome who was suspended after being arrested on her way home from school. The arrest occurred at a junior high at which Ms. Crome had stopped. She was released without charges being filed but the next morning received a letter informing her she had been suspended. 63. Id. at 1300. 64. Id. at 1301. 3. The hearing is not a judicial proceeding, but must provide at a minimum: - a. statements in support of the charges; b. statements by the student and others in defense of the charges and/or in mitigation or explanation of his conduct; c. the administrator is not required to permit the presence of counsel or follow any prescribed judicial rules in conducting the hearing. 65 The Supreme Court affirmed the lower court, at least in theory.00 In doing so, however, it limited the procedure necessary to satisfy due process. Due Process is Required in School Disciplinary Proceedings The Court first turned to the issue faced many times before in the lower courts as to whether or not the due process clause applied to school disciplinary proceedings. The school officials contended that because there was no constitutional right to an education, the due process clause did not protect against expulsion from the public school system.6 7 The Court first discussed the right to education as being a property interest. Protected interests in property are normally 'not created by the Constitution. Rather, they are created and their dimensions are defined' by an independent source such as the state statutes or rules entitling the citizen to certain benefits. 08 Since the students had a legitimate claim of entitlement to a public education under Ohio law,69 the Court held, "Ohio may not with- draw that right on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has oc- curred." 7 0 [T]he State is constrained to recognize a student's legitimate en- tiltlement to a public education as a property interest which is pro- tected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum proce- dures required by that clause.71 Basing the student's property interest in education upon a state statute would appear to limit due process protection to students residing in states having compulsory attendance laws. This pre- sents no problem except for students in Mississippi and South 65. Id. at 1302. 66. 95 S. Ct. at 729. 67. Id. at 735. See also San Antonio Independent School Dist. v. Rodri- guez, 411 U.S. 1 (1973). 68. 95 S. Ct. at 735, citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 69. Omo REv. CODE §§ 3313.48, 3313.64 (1974). 70. 95 S. Ct. at 736. 71. Id. [VOL. 12: 912, 1975] Comments SAN DIEGO LAW REVIEW Carolina where no compulsory attendance exists.72 Even as to these students, due process applies because the Court found that charges of misconduct resulting in suspension from school, if sustained and recorded, could "seriously damage the students' standing with their fellow pupils and their teachers as well as inter- fere with later opportunities for higher education and employ- ment."73 Referring to the due process clause protection of liberty, the Court found that where a person's good name, reputation, honor, or integrity was at stake because of governmental action, the minimum requirements of due process must be satisfied. 74 Minimum Procedures are Established Having found that the due process clause applied to the *right to public education, the Court faced the question of what minimum procedures were necessary to satisfy the clause. School officials argued that due process did not come into play until a student was subjected to severe detriment or grievous loss. 75 The Court rejec- ted the school's argument, turning to Sniadach v. Family Finance Corp.76 for the proposition that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the due process clause. "A ten-day sus- pension from school is not de minimis in our view and may not be imposed in complete disregard of the due process clause. '7 7 The 'Court, finding that a fundamental requisite of due process of law was a hearing and being informed of that hearing, held a student facing suspension must be given some kind of notice and afforded some kind of hearing.78 72. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 112 n.68 (1973). 73. 95 S. Ct. at 736. 74. Id. The due process clause forbids arbitrary deprivations of liberty. Such deprivation may result where the student's school records reflect that he has been suspended. As noted by the Court, four of twelve randomly selected Ohio colleges specifically inquire of the high school of every appli- cant for admission whether the applicant has ever been suspended. Id. at 736 n.7. It is this type of blemish on the student's reputation which the Court seeks to protect by requiring minimal due process. 75. 95 S. Ct. at 736. See also Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951). 76. 395 U.S. 337, 342 (1969). 77. 95 S. Ct. at 737. 78. Id. at 738. hibitive cost or interference with the educational process. 0° Within this framework the Court finds equilibrium between the two interests in requiring the disciplinarian to seek out the student, obtain his side of the story and then render his decision on whether to suspend the student or not. As was pointed out by the Court: [F] airness can rarely be obtained by secret, one sided determination of the facts decisive of rights.... No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.91 The Court provides this instrument to the student in a most basic form: one where only the student is informed of the alleged viola- tion, without knowing the identity of his accuser, and without means to seek review of the school officials' decision. While the Court's minimum standard may be adequate for suspensions of extremely short duration, in light of this potential harm to the student, it is not adequate for a suspension of longer duration. 2 AN EXPANSION OF Goss: A PROPOsED NEW STANDARD If suspended for a short period of time, a student can make up missed lessons. Likewise, he is not so far behind his classmates as to place a burden on the teacher in helping him catch up. As the duration of the suspension increases, however, the potential harm to a student, in terms of missed lessons, becomes greater. As the potential harm to the student increases, the procedure essential to justify the harm should become more formal, and if necessary more burdensome on school officials.0 3 Many lower courts, in reviewing school discipline proceedings, adopted a test of basic fairness to determine whether the student was accorded due process.94 A court must not lose sight of this goal of fairness when the balancing process is entered into. If, to insure fairness to the student, a formal hearing is required prior to a short suspension, then that result must be reached in the 90. Id. at 739. 91. Id., quoting from Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 170- 72 (1931). 92. See cases cited note 52 supra; ef. 95 S. Ct. at 743 (dissenting opin- ion). 93. Thestudent absent from school for more than a couple of days faces several problems. First, he has missed foundational material upon which the lessons presented on his return are based. Second, he must make up work missed plus prepare the work assigned when his suspension ends. In- terview with John Westrick, Principal of Lakeside Jr. High School, in Lake- side, California, March 11, 1975. , 94. E.g., Banks v. Bd. of Pub. Instruc. of Dade County, 314 F. Supp. 285 (S.D. FIla. 1970), affd, 450 F.2d 1103 (5th Cir. 1971). [VOL. 12: 912, 1975] Comments SAN DEGO LAW EIT balancing process. Attempting to balance two somewhat adverse interests and arrive at a fair result is not a simple task. The Goss Court set forth what it determined to be a procedure that would insure a fair result to the student without placing an undue burden on school officials. Using as a foundation the principles established in Goss, this commentator suggests a new minimum standard to counterbalance the potential harm which may result from a suspen- sion. The Goss Court held that prior to any suspension, the minimum procedure which it established must be followed. The Court left open the possibility that more formal proceedings may be required in certain circumstances.9 5 A circumstance which would warrant a more formal procedure than the Goss standard is presented in the suspension of a student for a period in excess of three days.96 There is no magic in the three-day cut-off period and it is recognized that attempting to establish a fixed time -limit leads to many problems. However, for the sake of discussion, the three-day cut-off is adopted. The Initial Hearing Suspensions in excess of three days present a situation where the potential injury to the student increases each day absent from school. In such cases more is required by way of minimum procedures to satisfy the due process clause.97 The school disci- plinarian, faced with information of conduct which may warrant suspension of the student, must seek out and confront the student with the charges against him. If the student indicates the charges are accurate, he should be given an opportunity to explain his con- duct if he so desires. If the student denies the charge or presents facts different from those first reported to the school official, the 95. 95 S. Ct. at 741. 96. See Dunn v. Tyler Independent School Dist., 460 F.2d 137 (5th Cir. 1972), where the court approved a school district regulation requiring writ- ten notice and a hearing for suspensions in excess of three days. 97. The Goss Court did not limit school officials to the minimum proce- dure it established. It expressly provided that once the disciplinarian is alerted to the existence of disputed facts "[h] e may then determine himself to summon the accuser, permit cross-examination and allow the student to present his own witnesses." 95 S. Ct. at 741. If in each case involving a greater than three day suspension, such a determination would, in fact, be made there would be no need for a new standard. official must make two initial determinations. The first is whether the charges, if sustained, would result in a suspension of the student for a period in excess of three days. If it would not, the official has satisfied due process, having adhered to the Goss standard.98 If the possible suspension would exceed three days, the official must next determine if the student's continued presence at school would disrupt the educational process. In such a situation, the student may be immediately removed from school but a hearing must follow as soon as reasonably possible after the suspension.09 Absent emergency circumstances, the student may remain at school until the individual who initially supplied the facts concerning the student's conduct can be summoned before the official. The two then should go over the initial report in light of the student's denial or statement of different facts. The student need not be present during this conference. At this point, the official, having confirmed the accusations after confronting the student and securing his state- ment, is free to resolve any discrepancies and determine whether to suspend the student or not.100 Notice to the Parents of the Suspension One of the most essential requirements in any suspension situa- tion and one which the majority in Goss failed to discuss, is notice of the suspension to the student's parents.10' In virtually all cases surveyed, notice of the suspension was given to the parents. The failure of the majority in Goss to require some type of notice to the parent that their child had been suspended and the reasons for same is a major shortcoming of the decision. As the dissent points out, the Ohio statute which the majority'found unconstitutional required, "written notice including the 'reasons therefor' to the student's parents and to the Board of Education within 24 hours of any suspension.' 0 2 98. The fact that the suspension would not exceed three days does not limit the official to merely confronting the student. See Dunn v. Tyler In- dependent School Dist., 460 F.2d 137 (5th Cir. 1972). 99. Pervis v. Lamarque Independent School Dist., 466 F.2d 1054 (5th Cir. 1972). 100. It has been suggested that an impartial official should determine whether to suspend or not. See Linwood v. Bd. of Educ., City of Peoria, 463 F.2d 763 (2d Cir. 1971), cert. denied, 409 U.S. 1027 (1972); Farrell v. Joel, 437 F.2d 160 (2d Cir. 1971). 101. Notice should always be given to the child's parents when a suspen- sion is issued against the student, no matter how short the suspension period is. See Hudgins, The Discipline of Secondary School Students and Proce- dural Due Process, A Standard, 7 WAKE FOREST L. R=. 32, 46 (1971). 102. 95 S. Ct. at 747 (dissenting opinion).