Wednesday, January 19, 2022


Article Index

Student Rights

As young citizens, students are afforded many of the protections that their parents and adult counterparts are offered as citizens and residents of the United States, and as citizens and residents of the States in which they reside. It is therefore generally accepted that students have the right to a free and appropriate education; that they are not to be discriminated against because of their race, color, natural origin, sex, handicap, or their marital or parental status. Students also enjoy "inalienable rights" (sometimes called fundamental or basic rights), that include the right to a safe and orderly learning environment; to be treated with respect, dignity, and equality; to express their personal opinions, and to speak freely regarding the topics of study with which they are presented; to assemble peaceably and discuss their concerns among themselves, or with the school personnel; to personal privacy; to the security of their private possessions; to the privacy of their records and school documents; to be informed of what rules and regulations (of conduct, scholastic requirements, and so forth) will be expected of them; and to reasonable and fair treatment in all school related or school sponsored circumstances. Fair treatment is a relative term, of course, and as the students proceed through the hierarchy of proscribed activities—that is, from less to more severe infractions—the amount of "fair treatment" increases and becomes more broad. For example, a student found to be wearing clothing, tattoos, or emblems that promote or encourage the use of alcohol, tobacco, or drugs may be asked to remove or cover the offending item. A student engaged in behavior that significantly and adversely affects school activities and atmosphere—for example, a student involved in a fight—may be formally disciplined, and will probably and immediately be removed from the school premises. At the far end of the spectrum, a student involved in behavior for which the penalty is expulsion, such as arson, assault, bomb threat, burglary, drug trafficking, firearms possession, and the like, will be afforded the full panoply of due process rights that would apply to an adult who, as punishment for an alleged unlawful act, might ultimately be deprived of his liberty, or an important property possession.

Just because the states have the power and in fact extend the right to a free, public education to students residing within the state's jurisdictional boundaries, the states may not abridge or withdraw that right because of alleged student misconduct, unless the student has been afforded the entire range of fundamentally fair procedures before the right to attend school is curtailed or withdrawn. The student's attendance in school is akin to a property or liberty interest, and the student's suspension or expulsion from the school environment may be seen as a temporary or permanent denial of these important interests.

Therefore, the schools' threat of denial of these interests must be conducted within the state and federal constitutional frameworks, and in concert with the constitutional safeguards that are embodied therein. The due process clauses of the state and federal constitutions come immediately to mind, and it has been said that a student's alleged misconduct does not deny that student full advantage of minimum procedural and substantive due process rights. These due process elements are even more important when one considers that the students in high schools are, for the most part, minors, and they are often too inexperienced and immature to avail themselves of the appropriate defenses and procedural protections against the allegations of misconduct that might be levelled against them. Generally speaking, students are denied due process of law if the allegations against them are so vague and standardless that they leave the student, and his parent or guardian, without effective opportunities to refute the charges or to challenge them as sufficient grounds for the student's removal from the school premises.

The general notice and hearing procedures that are sufficient to safeguard a student's due process rights can be minimal: the student must be given notice of the allegations/charges raised against him or her, and an opportunity to a hearing on the charges before the student may be expelled from the school system. Most state statutes go farther; and they may even offer the appropriate foundation principles and guidelines for a matter as serious as an expulsion proceeding. First, the statute will make plain that expulsion is the most serious school related offense that a student might engage in, and that the principal may recommend expulsion to the school superintendent if it has been documented that the student was engaged in actions that resulted in a serious breach of school-proscribed conduct. Such conduct includes but is not limited to a student's willful disobedience, open defiance of a teacher or staff member's authority, violence against the person or property of another, violence against a teacher or school administrator, or any other act that substantially disrupts the school's orderly conduct.

Even at this stage of the proceedings—that is, at their outset—the statute will probably also require that before the expulsion recommendation has been submitted for the superintendent's review and response, the principal must also detail the alternative measures (short of expulsion) that were either instituted or recommended in this particular student's case, and that preceded the expulsion recommendation. Where the student's actions are of a nature that constitutes grounds for expulsion, then the student will normally be provided with all of his due process rights, including the following:

• Before being suspended from participation in classroom and other school-sponsored activities, the student will be provided with written or verbal communications generated from an appropriate school official so that the student may know the allegations against him, and have the opportunity to rebut them if appropriate (again, basic due process considerations: notice of charges, ability to be heard, and to offer evidence in the student's own defense, and so forth)

• The student, and his parent or guardian, will be provided with a conference with the appropriate school official, so that there is full disclosure of the allegations that have been made against the student (due process: notice of charges, ability to be heard, and to offer evidence in the student's own defense), and so that the parent and student will know the reason for the expulsion recommendation, and the specific recommendation for expulsion (expulsion recommendations can include the student's removal from further school activities for a specified term; referral to an alternative school environment for a specified term, or referral to a substance or alcohol abuse program)

• Mandatory suspension from school classes and activities until the expulsion hearing has been completed

• Documentation specifying the student's rights during the course of expulsion hearings

• Documentation specifying the procedures to be followed if the student wishes to appeal the principal's expulsion recommendation via a formal hearing, or other, similar procedure

• Information that the student has the right to retain legal counsel, to present witnesses and evidence on his own behalf, and to speak on his own behalf at the formal presentation of the case against him

• The execution of a stipulation if the principal recommends an expulsion procedure or outcome that is agreed to by the student and his parent or guardian.

[. . .]