Due process in school suspensions: There is no federal right to education1, but the Supreme Court has nevertheless recognized that the right to attend public school is a state-created property right.2 Children, therefore, cannot be deprived of the right to attend public school without due process of law. The due process rights of children facing a deprivation of the right to continued school attendance, i.e., facing either suspension or expulsion from school, have received only limited attention by the U.S. Supreme Court and the lower federal courts. The following principles have emerged:
- Notice and an opportunity to be heard. Any student who will be involuntarily removed from school as a result of a disciplinary infraction, even if only for a short period of time (such as a few days), is entitled to oral or written notice of the alleged offense.3 If the student denies the allegation, he must be given an explanation of the evidence the authorities have against him and an opportunity to present his side of the story. For a short-term suspension, which is defined as fewer than ten days, this can be a very informal interchange; no formal hearing is required. In most cases, this informal notice and opportunity to respond should occur prior to the suspension, although if the school authority determines that the continuing presence of the student represents a danger to the other students or staff, the student may be removed immediately. In such a case, the necessary notice and rudimentary hearing must occur as soon as practicable.
Hearing. More formal procedures are due to a student who is facing a long-term suspension.4 Neither the U.S. Supreme Court nor the Fourth Circuit Court of Appeals has itemized the extent of those due process protections. In 1972, a North Carolina federal district court stated, that certain protections “appear essential if both the substance and the appearance of fairness are to be preserved.”5 The protections cited are: (1) Written notice to parents and the student of specific statement of charges
(2) A full hearing, after adequate notice, before an impartial tribunal
(3) The right to examine evidence against the student
(4) The right to be represented by counsel, though not at state expense
(5) The right to confront and examine adverse witnesses
(6) The right to present evidence
(7) The right to a record of the proceeding
(8) The right to have the decision based on substantial evidence.
The North Carolina Court of Appeals cited Givens v. Poe, as well as the federal constitution when it ruled that a student facing long-term suspension has the right to a factual adjudication.6 The Court held, “[W]e construe the Due Process Clause of the United States Constitution, applicable to the States through the Fourteenth Amendment, to require that petitioner have the opportunity to have counsel present, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.”7 (As of 2011, the state statute was changed and now itemizes the due process protections afforded in the context of a long-term suspension. That statute is discussed below under State Legislation.)
In a later case, Hardy v. Beaufort Co. Board of Education,8 the Court of Appeals took the position that a student deprived of the right to procedural due process cannot state a claim for the constitutional wrong unless he or she can show prejudice. In Hardy, the court found that no prejudice could be shown when the board failed to offer the student a full evidentiary hearing before a long-term suspension was imposed because the student admitted her guilt. This result, however, is in direct conflict with the U.S. Supreme Court’s holding in the case of Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In Carey, which was a claim by elementary school students alleging a denial of due process in their suspension from school without a hearing, the Supreme Court reversed the lower court which had held there must be actual damage. The Court held, “Because the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, . . . we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.” Id. at 266, 98 S.Ct. 1054. Carey v. Piphus was cited with approval by the North Carolina Supreme Court in 1980 in Jones v. Dept. of Human Resources, 300 N.C. 687, 268 S.E.2d 500 (1980).
- Due process for corporal punishment: No notice or opportunity to be heard is required by due process before corporal punishment is administered.9 After-the-fact common law tort remedies are considered to be adequate to afford due process to a child who is wrongly paddled or is subjected to excessive corporal punishment. The administration of corporal punishment does not violate the Eighth Amendment protection against cruel and unusual punishment, as that amendment applies only in the criminal context, not the school discipline context.10
Privacy/ Search & Seizure
- In general. The Fourth Amendment right to be free of unreasonable search and seizures applies to children in public school.11 The standards for what constitutes an unreasonable search is dependent on the circumstances, and children in school are not entitled to the same degree of privacy as adults in their homes would be. In the public school setting, a child and his belongings may be searched when there are reasonable grounds for suspecting that the search will turn up evidence that the student violated the law or school rules. The scope of the search must be reasonably related to the circumstances that justified the interference in the first place. A search may not be “excessively intrusive” in light of the age and sex of the student and the nature of the infraction.12 A high school girl’s purse could be searched by the principal when he had received a report from a teacher that she was smoking on campus, in violation of the school rules, and the search could continue more thoroughly when the principal found rolling papers that were associated with illegal drug use.13 Nevertheless, a 13-year-old girl could not be strip-searched upon suspicion that she was hiding non-prescription drugs, as that was considered excessively intrusive.14
- Drug searches. Random drug testing for all students in public schools has not yet been authorized by the U.S. Supreme Court, although the most recent opinions on the subject point in that direction.15 Under current Supreme Court precedent, all participants in extracurricular events may be required to submit to random drug testing.16
1 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
2 Goss v. Lopez, 419 U.S. 565 (1975)
3 Id. The court ruled only on suspensions of up to ten days. As a rule, due process does not apply to in-school suspensions. See Dickens v. Johnson County Bd. of Ed., 661 F. Supp. 155, 156 (E.D. Tenn. 1987). But see Cole v. Newton Special Mun. Separate Sch. Dist., 676 F. Supp. 749, 752 (S.D. Miss. 1987) (where a high school student whose in-school suspension involved sitting in a detention room that isolated her entirely from the learning environment, this constituted a total exclusion from the education process, thus implicating due process protections).
4 Goss, supra, note 2; In Re Roberts, 150 N.C. App. 86, 563 S.E. 2d 37(2002), appeal dismissed as improvidently granted, 356 N.C. 660 (2003).
5 Givens v. Poe, 346 F. Supp. 202 (1972).
6 In Re Roberts, 150 N.C. App. 86, 563 S.E. 2d 37 (2002) appeal dismissed as improvidently granted, 356 N.C. 660 (2003).
7Id. at 150 N.C. App. 93, 563 S.E.2d at 42. Note that in relying on Roberts, the Court of Appeals in Alexander v. Cumberland Co. Bd. of Educ., 171 N.C. App 649, 615 S.E.2d 408 (2005), changed the final phrase “or to call witnesses to verify his version of the incident” to “and to call witnesses to verify his version of the incident.” (emphasis added).
8 201 N.C. App 132, 685 S.E.2d 550 (2009) (note that this case is reported as being reversed. It was not reversed, however. The report was due to an error made by the N.C. Supreme Court in a related case. The Supreme Court stated that it was reversing this case, when in fact it was reversing a case involving the same party, cited at 200 N.C. App. 403, 683 S.E.2d 774 (2009).
9 Ingraham v. Wright, 430 U.S. 651 (1977).
11 New Jersey v. T.L.O., 469 U.S. 325 (1985).
14 Safford v. Redding, 129 S.Ct. 2633 (2009).
15 The Circuit Court of Appeals for the Eighth Circuit, however, has found that random searches of all school children violate the 4th Amendment. See Doe v. Little Rock School Dist., 380 F. 3d 349 (8th Cir. 2004).
16 Pottawatomie County v. Earls, 536 U.S. 822 (2002).