DUE PROCESS RESPECTING OUR RIGHTS Created by the

DUE PROCESS RESPECTING OUR RIGHTS Created by the Ohio State Bar Foundation

Due Process- Respecting our Rights Board of Education, School District No. 92 of Pottawatomie County v. Earls, Lindsay, et. al. (2011) Created by the Ohio State Bar Foundation

Background Story • “Student Activities Drug Testing Policy” • Participation in extracurriculars means random drug tests • Must sign off on policy • Lindsay Earls challenged policy in court

Background Story Fourth Amendments Rights: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Legal Problem • Is random drug testing unconstitutional? • Does the school need probable cause to test students in extracurricular activities? • Can a student be forced to submit to random testing as a condition of participation?

Legal Problem • Is the intrusion too significant? • Does a school restrict a student’s rights because of such a policy? • Does this policy effectively serve the school’s interest in protecting a student’s safety and health?

Arguments in Favor of Earls • Fourth Amendment protection • No right for mandatory, baseless urinalysis • Due process is being denied

Arguments in Favor of the School • School’s right to prevent drug use • Diminished expectation of privacy for students • Participation is not mandatory • Participation = acceptance of drug policy

Outcome • Federal District Court ruled for the school • 10 th Circuit Court of Appeals reversed the decision • U. S. Supreme Court ruled 5 -4 for the school

Outcome • Serves the school’s need to prevent drug use • Students have limited privacy • Taking urine samples is minimally intrusive

DUE PROCESS RESPECTING OUR RIGHTS Created by the Ohio State Bar Foundation

Let’s Add Due Process to the Test Fourteenth Amendment’s Due Process Clause: “…nor shall any State deprive any person of life, liberty, or property, without due process of law; …” Created by the Ohio State Bar Foundation

Let’s Add Due Process to the Test • Policy is constitutional • Search and seizure is constitutional • Still must get fair hearing (due process) to tell one’s side of the story

Let’s Add Due Process to the Test • What due process rights do students have before schools punish or dismiss them for disciplinary or academic reasons?

Let’s Add Due Process to the Test Two types: • Substantive due process. Schools cannot infringe on fundamental Constitutional liberties • Procedural due process. Schools are limited on how a law is administered, applied, or enforced. Policies must be fairly applied.

Let’s Add Due Process to the Test Balancing test for substantive and procedural due process- Three factors 1. Was a student given a fair hearing? Did a student get a chance to tell his side of the story?

Let’s Add Due Process to the Test 2. Did the student have more rights taken away because of the procedures used? For example, was a student’s drug test announced to the whole school, thus going beyond the policy’s purpose?

Let’s Add Due Process to the Test 3. Is the burden for the school to supply due process beyond reasonable expectations?

DUE PROCESS RESPECTING OUR RIGHTS Created by the Ohio State Bar Foundation

Due Process - Respecting our Rights Historical Case Goss v. Lopez (1975) Created by the Ohio State Bar Foundation

Background Story • Protesting the Vietnam War at Central High School • School property was damaged • 75 students suspended

Background Story • No hearings for suspensions. Ohio law did not require hearings • Dwight Lopez was innocent bystander • No explanation for his suspension

Background Story • Many suspensions were for 10 days • Parents sued • The Supreme Court of Ohio ruled the law was unconstitutional • School officials appealed to U. S. Supreme Court

Background Story Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Legal Problem • Does the Fourteenth Amendment’s Due Process Clause extend to students? • Were the students’ rights to due process violated when they were not given a hearing before the suspensions?

Legal Problem • Does the school’s need to protect students override due process in emergency situations that demand swift actions by officials?

Arguments in Favor of the School • Schooling is a state responsibility • No constitutional right to education- no right to due process • 10 days is not a severe loss • Ohio law permits suspension for misconduct • Misconduct occurred

Arguments in Favor of Lopez • Guaranteed free education • Cannot withdraw education if misconduct can’t be determined • 10 -day suspension is dangerous and severe punishment

Arguments in Favor of Lopez • Notify students of rules they are breaking • Confront their accusers • Due process protects all citizens- students included

Outcome • Supreme Court rules 5 -4 for students • Students are citizens- deserve protection • Arbitrary suspensionsunconstitutional • 10 -day suspension- deprives “life, liberty, or property”

Outcome Dissenting justices: • Suspensions are “insignificant infringement of education. ” • Different rights and duties between adults and children • Discipline is part of functioning school

DUE PROCESS RESPECTING OUR RIGHTS Created by the Ohio State Bar Foundation

Present Day Realities Judging the Fourteenth Amendment Created by the Ohio State Bar Foundation

Background Story Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Background Story • 14 th Amendment was added to Constitution in 1868 • A Reconstruction Amendment (added after Civil War)

Background Story • Citizenship Clause. Rights of an American • Equal Protection Clause - all citizens • Due Process Clauseenforcing legal rights owed to all citizens

Background Story • Constitution- rigid but not stagnant • Over 200 years- 17 more Amendments after the Bill of Rights • Government powersonly those granted in Constitution

Background Story • Government makes decisions how to carry out granted powers“Reasonable Construction” • Decisions not easy • Right and wrong not always clear

Asking Fourteenth Amendment Questions • Who is protected by due process? • Does it protect immigrants? Should it?

Asking Fourteenth Amendment Questions • What is an impartial due process hearing? • If you are going to be suspended or expelled from school, should administrators only be making the decision as they hear your case?

Due Process Questions • Should the government provide lawyers during due rights hearings to the person whose rights are being questioned? • Should terrorism suspects, such as those at Guantanamo Bay, have due rights protection?

Asking Fourteenth Amendment Questions • What procedures should be required before a student be dismissed for academic failure?

Asking Fourteenth Amendment Questions • Should due process be applied when interviewing for a job, college admission, or scholarship aid, especially if you are turned down? • Should you be told why?

Asking Fourteenth Amendment Questions • Can you be dismissed from a job without due process?

Due Process Questions • The Patriot Act is a law passed to prevent and punish terrorist acts against the United States by letting law enforcement have extra powers. • Is the Patriot Act in conflict with due process in any way?

Asking Fourteenth Amendment Questions • Due process supporters often contend it is better to let 10 guilty people go than convict one innocent person. How do you respond to this statement?

Asking Fourteenth Amendment Questions • Are your due process rights denied if you sit in the office during a class because you are misbehaving?