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					  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

   • 10th 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 suspensions-
     unconstitutional

   • 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

        • 14th 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 Clause-
  enforcing 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 powers-
            only 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?

				
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