A student violates your Code of Conduct and is summarily sent to the DAEP for six weeks. Lawyer B.J. “Bullfrog” Throttlebottom shows up in your office complaining that the student, his client, was deprived of the Due Process owed to him under the 14th Amendment to the U.S. Constitution.
You call your school district attorney, and relay the conversation with Throttlebottom. Your attorney promptly sends a letter to Bullfrog informing him that “It is impossible to violate your client’s rights to Due Process under the 14th Amendment. He doesn’t have any right to Due Process under the 14th Amendment. He’s not entitled to ‘due process.’”
Is that so?
It is. This first came up in Texas shortly after the passage of Chapter 37 in the Education Code in 1995. That’s when the legislature first mandated what we now call DAEPs. San Marcos CISD assigned Timothy Nevares to DAEP (called AEP back then) and was sued over the Due Process clause of the 14th Amendment. The case went to the 5th Circuit. The court ruled that Nevares was not denied “due process” because no process was due. “Process” is “due” only if the state (or school district) deprives a person of “life, liberty or property.” Those are the three things protected by the 14th Amendment. The court held that “Timothy Nevares was not denied access to public education, not even temporarily. He was only transferred from one school program to another with stricter discipline.” Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).
This does not mean that school administrators should be cavalier about assigning students to the DAEP. Constitutional due process is not required, but there are procedures required by state law that are designed to ensure that the student and/or parent is given an opportunity to be heard. So follow your procedures and provide for a fair consideration of the case.
By the way, I’m pleased to let you know that our law firm handled the Nevares case and helped to establish this important precedent. My former partners Dorcas Green and Eric Schulze deserve the kudos for that one.
DAWG BONE: THE 5TH CIRCUIT TELLS US THAT SENDING A STUDENT TO THE DAEP DOES NOT TAKE AWAY “LIFE, LIBERTY OR PROPERTY.”
Tomorrow: Garrity warnings.