8.2 Constitutional Requirements
8.2 Constitutional Requirements aetrahan Mon, 03/06/2023 - 14:34In Goss v. Lopez, the U.S. Supreme Court recognized that students facing out-of-school discipline are entitled to due process protections.1 The Court began by noting that students have both a property and a liberty interest in their education.2 The former arises from state constitutional provisions requiring free public education, while the latter is based on the fact that disciplinary infractions on a student’s record may inflict reputational damage and impact further education and employment opportunities.3 The Court then concluded that the right to a free public education cannot be taken away through exclusionary discipline without providing the student with basic due process protections.4 Evaluating the particular issue at play in Goss, the Court held that for a suspension of less than 10 days, due process requires that the student be given “oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”5
Goss did not decide how much process was required for expulsions or suspensions longer than 10 days. Instead, the Court observed that “[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.”6 In light of this, courts have typically held that students are entitled to a sliding scale of due process protections based on the severity and length of the exclusionary discipline they face. For example, while due process does not require a hearing in front an impartial decision-maker for a short-term suspension, due process does require such a hearing when a student is recommended for expulsion.
Note that the constitutional due process protections outlined in Goss represent the minimum protections that must be afforded to students facing exclusionary discipline; state law and school district policies can provide greater protections.