How can parents prevail at due process? You must learn how to use letters, documents, and independent witnesses to prove your case.
Your job is to present your case in an organized manner. Give the decision-maker enough good factual information to reach a conclusion in your favor. Make sure you read each section in today's issue to find out how.
In this issue of the Special Ed Advocate, you'll find a new success story of how one family prevailed at due process - they refused to give up! Read their story, followed by the sample letter to request due process and the two different decisions in the case.
Wrightslaw in Your Pocket? Wrightslaw books for Kindle, iPad & Nook are coming soon!
Please don't hesitate to forward this issue to other friends, families, or colleagues.
Find Wrightslaw on Facebook
Human Rights Education: The 4th R,
Working for Children's Rights, vol. 7 No. 2, Fall 1996.
The national Institute for Citizen Education in the Law (NICEL) is dedicated to empowering young people to become active, successful citizens through the study of law, human rights and democratic principles, NICEL works with teachers and organizations throughout the country and around the world. NICEL's programs and materials draw real world connections between the lives of young people and the law, human rights, and democratic values. All the materials use participatory methods such as case studies, role plays, in-class debates and cooperative learning.
Two of NICEL's texts, Street Law: a course in Practical Law and Human Right for All, are extremely popular among students and teachers alike. In fact, the best selling Street Law text is widely used in all 50 states and is the basis for similar courses in countries suck as South Africa, Hungary, Chile, Ecuador, and Bolivia.
One issue which engages the interest of high school students is procedural due process (ensuring fair procedures are followed before government agents deprive a person of life, liberty, or property). Try this lesson in the classroom and if you like it, information on how to obtain a copy of the two NICEL texts is provided at the end of this article.
"No person shall he...deprived of life, Iiberty, or property without due process of law... " (Fifth amendment)
"No State shall.. deprive any person of li/e, liberty, orproperty, without due process of law... (Fourteenth Amendment)
Procedural due process of' law refers to the fair procedures which must be followed when a citizen's rights are to be infringed upon by a government agent. The constitution protects the rights of individuals (including children) against an infringement of life, liberty or property without fair government procedures. "(Government takes many actions that may deprive people of life, liberty, or property. In each case, some form of due process is required. For example, a state might fire someone from tt government job, revoke a prisoner's parole, or cut off someone's social security payments Due process does not prohibit these actions, but it does require that certain procedures be followed before any action is taken" ( Street Law, p. 486).
"If a person has a right to due process, the next issue is this: What process is due? Due process is a flexible concept. The procedures required in specific situations depend on several factors: ( I ) the seriousness of the harm that might be done to the citizen. (2) the cost to the government, in time and money, of carrying out the procedures; and (3) the risk of making an error without the procedures'' (Street Law, p. 485).
"In addition to notice and an opportunity to he heard, due process may include a hearing before an impartial person. representation hy an attorney, calling witnesses on one's behalf, cross-examination of witnesses. a written decision with reasons based on the evidence introduced, a transcript of the proceeding, and an opportunity to appeal the decision "(Street Law, p. 487). The following excerpted lesson from Street Law highlights the practical aspects of procedural due process.
Sample Lesson from Street Law Text (High School Level)
In 1971 widespread student unrest took place in the Columbus, Ohio public schools. Students who either participated in, or were present at, demonstrations held on school grounds were suspended. Many suspensions were for a period of 10 days. Students were not given a hearing before suspension, although at a later date some students and their parents were given informal conferences with the school principal. Ohio law provides free education to all children between the ages of 6 and 21. A number of students, through their parents, sued the board of education, claiming that their right to due process had been violated when they were suspended without a hearing.
In Goss v Lopez, the Supreme Court decided that students who are suspended for 1() days or less are entitled to certain rights before their suspension. These rights include: ( I ) oral or written notice of the charges, (2) an explanation (if students deny the charges) of the evidence against them; and (3) an opportunity for students to present their side of the story.
The Court stated that in an emergency. students could be sent home immediately and a hearing held at a later date. The Court did not give students a right to a lawyer, a right to cross-examine witnesses, a right to call witnesses, or a right to a hearing before an impartial person.
In Goss, the Court considered the due process interests of harm, cost, and risk. The Court ruled that reputations were harmed and educational opportunities were lost during the suspension; that an informal hearing would not be overly costly for the schools; and that while most disciplinary decisions were probably correct, an informal hearing would help reduce the risk of error.
a. What happened in the Goss case? What rights did the Supreme Court say the students should be given prior to a brief suspension'?
b. What rights might the students want that they did not receive in this ease'' What are the arguments for and against providing these additional rights?
c. Do you think this case was decided correctly'? Give your reasons.
WHERE YOU LIVE
What due process procedures are followed hy schools in your area before a student is suspended?
Answers to Problem 30 in Street Law Teacher's Manual
a. The students were suspended for their presence at or their participation in a demonstration conducted at the school The Supreme Court held that the students have a right to he informed of the charges brought against them and must be given an opportunity to be heard.
b. The students may want the right to call and cross-examine witnesses. They may also want to have an impartial person preside over the proceeding. These rights will give the students more protection. but unfortunately, they are time consuming and costly.
c. Student responses will vary. Goss provides a good opportunity to emphasize both the flexible nature of due process and the importance of fair procedures in avoiding government errors. Discuss whether the procedures required by Goss are adequate.
The case of Goos v Lopez is a leading student rights case (419 U.S. 565,1975). It is left open the possibility that due process might apply in ~treas of education other than discipline. Some of the uncertainty was dispelled, however, in Board of Curators of the University of Missouri v Horowitz when the Court held that dismissal of a medical student for academic (as opposed to disciplinary) reasons did not necessitate a due process hearing.
In determining "what process is due," courts use the balancing test set out in the text. The interests to be balanced were articulated by the Supreme Court in Mathews v. Eldridge. Guest speakers could include members of your school's disciplinary board or school officials. Special Project 4: Rules in Your School or Special Project 6: Attending School Disciplinary Hearings may be appropriate at this point.
In a 1982 case, the Supreme Court did consider the substantive due process rights of an involuntarily committed retarded person. In that case, the Supreme Court held that such persons have a due process liberty interest requiring the state to provide minimally adequate training to ensure safety and freedom from undue bodily restraints.
Teachers interested in receiving complimentary examination copies and ordering classroom sets of Street Law and Human Rights for All should contact: West Educational Publishing, School Division, 610 Opperman Drive, PO. Box 64833, St. Paul, MN 5516418()3, 800-328-2209 (voice) and 612-687-6857 (fax).
NICEl's Co-director Ed O Brien and International Programs Coordinator Dawn Emling contributed this article. For information on human rights and law-related education in the United States and other countries, contact NICEL at 711 G Street S.E., Washington, DC 20003, <email@example.com> (e-mail), 202-546-6644 (voice), 202-546-6649 (fax).