The Fifth Amendment to the U.S. Constitution states that no person will be “deprived of life, liberty or property without due process of law.” The 5th Amendment is more famous for containing the right against self-incrimination in criminal proceedings. But it also contains the admonition concerning due process of law. Over the years, courts have determined that this phrase contains within it two precepts. One is that government, federal, state, local, and any agency of government, must operate within the confines of the law and the other is that governments must take actions only within a context of fair procedures. 

The Fourteenth Amendment to the U.S. Constitution is called the “Due Process Clause” and it contains the same words as the Fifth Amendment to the same effect. All levels of government and all agencies of government must operate within the law and make decisions through the use of fair procedures.

The exact definition of procedures that are fair has been the subject of some discussion, but generally governments should make decisions only after giving the affected person notice, an opportunity to be heard, the right to review all of the evidence, the right to cross-examine adverse witnesses, a decision based exclusively on the evidence presented, the opportunity to be represented by counsel, preparation of a record of evidence presented, and a written findings of fact and reasons for its decision. 

The point of requiring that governments provide due process when making decisions is to avoid government actions that are arbitrary and capricious. Procedural due process for students means that decisions affecting students in public educational institutions must include the same elements.

How Does Due Process Apply to Suspension or Expulsion in Schools?

Every student has the right to education and public education is an entitlement provided by agencies of local government. Whenever a student is deprived of his right to education through disciplinary actions such as suspension or expulsion, the student is entitled to due process. 

This right to due process includes the right to notice and a fair hearing prior to the administration of long-term suspension or expulsion. Most states have laws regarding school suspension as do local school districts.

Is Due Process Required Prior to an Afterschool Detention?

Whether full due process is required prior to an after-school detention may vary from state to state and school district to school district. After-school detention involves holding a student after dismissal has occurred for some period of time, usually quite brief. Full due process would probably not be required for after-school detention because it is not so significant as to require a formal hearing with evidence, findings of fact and a ruling. 

Nonetheless, a school would be well advised to inform the student clearly of the violation for which they are being detained. Then the school would certainly want to communicate with the parent about the detention, informing them of the reason and the nature of the detention. 

The school would want to know that the parent does not have any plan for the after-school period on any particular day that would make the detention inappropriate, e.g. a doctor’s appointment. If the parent were to object, the school should certainly discuss the situation with the parent and perhaps agree on an alternative disciplinary move that is acceptable to all parties. And if the student would miss their transportation, e.g. the school bus ride home, then the school would need to provide acceptable alternative transportation.

What Rights Do I Have in a School Due Process Hearing?

Understanding the steps of due process in schools in the context of an expulsion or suspension would first require reviewing both the law of the state in which the school is located and then the regulations of the local school district within which the school operates. Both parties would want to conform to state and local rules regarding suspension and expulsion, assuming, of course, that they are fair, and that any rules regarding due process procedures are fair. For example, in Montgomery County Public Schools, a school district in Maryland, the district’s rule limits out-of-school suspension to 10 days only.

If a long-term suspension is contemplated for a student, then usually the student is suspended temporarily until a due process hearing can be conducted. Local rules may determine for how long the student can be suspended before a formal hearing must be held. Usually it is a period of from 5 to 10 days but it could be as long as 30 days 

A basic level of due process should be provided before the temporary suspension, e.g. a meeting including the student, their parents and school administrators, in which the circumstances leading to the suspension and the need for ongoing suspension pending a full hearing are discussed. Of course, the student and their parents must be given an opportunity to be heard at this meeting

The first step in any full hearing has to include notice to the student and their parents of the time, date and place of a hearing. Notice would also include a statement of the rule or rules that were violated and exactly how the rule was violated by the student. All long-term suspensions and expulsions must be reviewed in a formal hearing. The elements of due process at the hearing should include the following: 

  • A written notice of what specific rules were violated and how they were violated;
  • Notice that the suspension/expulsion will be decided by an impartial, three-person panel;
  • Notice to the effect that the student will have the opportunity to present evidence and witnesses on their own behalf;
  • Notice that the student will be able to bring legal counsel or a non-attorney advocate;
  • Notice that the he hearing will be closed to the public to protect the student’s privacy;
  • Notice that a written decision will be provided and when it will be provided.

Both sides to the dispute might want to be open to discussing alternatives to suspension or expulsion, e.g. reparation, community service, student participation in anger management counseling and the like.

The school would need to devise a plan that allowed the student to keep up with school work. This might be attendance at an alternative location or provision of assignments to the student by their regular teachers during the period of suspension. In any event, the school would want to take steps to ensure that the student is not deprived of their education during the suspension, especially if it is longer than a few days.

What Happens If I Am Denied My Right to Due Process?

If a school official or the board of education denies a student their right to due process in connection with a suspension or expulsion, the student can use this as a defense to a suspension or expulsion decision. A denial of due process procedures is grounds for the reversal of a suspension or expulsion decision of the board of education and for the student’s immediate reinstatement to school.

An expelled or suspended student or their lawyer would review local school district rules and regulations regarding how to appeal a suspension/expulsion decision. A court will look to make sure the student exhausted administrative remedies before turning to the courts for relief. If local authorities cannot rectify the problem with respect to a failure to provide due process, then a student can seek relief in state court.

Is There Ever a Time When I Can Be Denied My Right to Due Process?

In an emergency situation, a student could be denied due process, but only temporarily. If the school believes that a student poses an immediate threat to themselves or others, the school staff can suspend the student immediately for up to ten days without giving the student a hearing. Of course, the school would want to communicate with parents about the problem and involve them in decision-making at the earliest possible opportunity.

Full due process procedures must be provided as soon as possible. Only in emergency situations can full due process be skipped following the application of discipline.

Should I Contact a Lawyer?

If you have questions regarding your due process rights, or if you believe you have been denied your right to due process in school, you may want to contact a government lawyer experienced in education and schools

An experienced lawyer will be able to explain your rights to you and represent you in any appeals or administrative hearings that might be necessary. You are most likely to get the best possible outcome if you have an experienced lawyer representing your interests.