On Throwback Thursdays we like to highlight those “Golden Oldie” cases that established key principles of school law. In the area of student due process that case is Goss v. Lopez. That’s the 1975 case in which the Supreme Court held that the 14th Amendment concept of “due process” applies to a short term suspension. The Court defined “short” as ten days or less. Of course in Texas, out of school suspension is capped at three days.

Most campus administrators are familiar with the notion that a student facing a possible suspension must have the opportunity to “tell his or her side of the story.” That comes from Goss v. Lopez. The Court emphasized that it believed it was announcing a rule that school officials would easily comply with. The Court reasoned that any decent administrator would be doing this anyway. The process, according to the Court, could be short, informal and immediate. Just a simple give-and-take with the student.

What about DAEP? Twenty years after the Goss case, Texas mandated alternative education programs for kids who committed serious offenses. What sort of “due process” would apply here? This came up before the 5th Circuit in Nevares v. San Marcos CISD. The Court surprised a lot of people by holding that young Mr. Nevares was not entitled to “due process.” The Court reasoned that “process” was “due” only when the school district was proposing to deprive the student of his or her right to an education. The opinion said that DAEP was not such a deprivation: “Timothy Nevares was not denied access to public education, not even temporarily. He was only transferred from one school program to another program with stricter discipline.”

So there. No deprivation. No process due.

But be careful. The case was interpreting the constitutional notion of “due process.” We still have statutory law that applies. In particular, Chapter 37 requires a “conference” prior to a DAEP assignment, and that “conference” looks an awful lot like a form of “due process.”

Principals should keep one other important fact of life in mind. Most people are not lawyers, and so when they speak of “due process” they do not mean what the lawyers mean. When lawyers speak of “due process” they are talking about constitutional requirements as interpreted by our courts. But to the average person on the street “due process” just means basic fairness.
In that sense, we think you should always provide “due process” when taking disciplinary action. Principals often note that they spend an inordinate amount of time and energy dealing with the A-B-C-Ds of school life: Athletics, Band, Cheerleaders, Drill Team. Disciplinary action involving these programs does not require “due process” as the lawyers speak of that term.

But woe to you who fail to provide a process that satisfies the streetwise sense of “due process” for a cheerleader.

DAWG BONE: GOSS v. LOPEZ IS THE GOLDEN OLDIE FOR STUDENT DUE PROCESS

File this one under: STUDENT DISCIPLINE

TOMORROW: CAN THE SCHOOL BOARD PUNISH THE BOARD MEMBER WHO GOES BACK ON HER WORD?