Amicus Brief — Wood v. Strickland

Vee

sng dee’ o ate Pan!

Te ae I aaa he

paket

rm

gen “

a4 (fey

¥.

3 oe

SUBJECT INDEX

Page

Interest of Amicus Curiae 1

Introduction and Statement of the Case.......................... 2

Se I vccictitictnicnisitnctnyblictnniinnnn 6

Argument ... 7

I. The Due Process Clause Applies to the Re-

spondents’ Expulsion from Public High School 7

A. Introduction 7

B. Respondents Were Deprived of an Inter-

est in Liberty and Property When They

Were Expelled From Public High School 12

1. Respondents have been deprived of an

interest in liberty 12

2. Respondents have been deprived of an

interest in property....... 17

3. Petitioners misconstrue San Antonio

Independent School District v. Rodri-

guez, 411 U.S. 1 (1973) 20

C. The Public Schools Are Not “Enclaves” Be-

yond the Reach of the Due Process Clause

of the Fourteenth Amendment. 24

II. In Cases of Lengthy School Suspensions Due

Process Requires Notice and a Meaningful and

Timely Opportunity to Be Heard 28

III. Because Respondents in This Case May Not

Have Been Accorded the Procedural Safe-

guards Due Them, the Case Should Be Re-

manded ;

31

ii Sussect Inpex

Page

A. The February 18, 1972 Meeting of the

Scheol Board Clearly Did Not Reflect the

Minimum Elements of Due Process ..............

B. The March 2 Board Meeting May Not Have

Cured the Procedural Defects of the Prior

BD ssitcnsocsnstnnsnmrcnstegnnsnquetetenmennpuainnes

1. The record fails to establish the timeli-

ness of the March 2 hearing ......................

2. The record fails to establish that the

March 2 meeting provided a meaning-

ful opportunity to be heard ....................

a. The record suggests that the March

2 hearing may have been limited to

issue of punishment ............................

b. Even if the March 2 hearing was

not limited to the punishment issue,

it may have been tainted by the

Board’s own prior action....................

En ESE ARE I Se RE TE Oe

TABLE OF AUTHORITIES CITED

Cases Pages

Abington School District v. Schempp, 374 U.S. 203

(1963) 28

Arnett v. Kennedy, 94 S.Ct. 1633 (1974)

12, 14, 17, 19, 20, 23, 24, 29

Bell v. Burson, 402 U.S. 535 (1971) 12, 21

Board of Regents v. Roth, 408 U.S. 564 (1972)............

12, 13, 14, 15, 16, 17, 21, 23, 25

Boynton v. Virginia, 364 U.S, 454 (1960) 3

Cafeteria and Restaurant Workers Union v. McElroy,

ee ee 9, 22, 24

Calero-Toledo v. Person Yacht Leasing Co., 424

U.S.L.W. 4693 (1974) 24, 29, 33

California v. LaRue, 409 U.S. 109 (1972) ~.................... 16

Charles S. v. Board of Education, 20 Cal.3rd 83, 97

Cal. Rete. 463 (1871)........................ 9

Cleveland Board of Education v. LaFleur, 414 U.S.

632 (1974) 20

Connell v. Higgenbotham, 403 U.S. 207 (1971).............. 21

Dandridge v. Williams, 397 U.S. 471 (1970).................. 21, 22

Dixon v. Alabama Board of Education, 294 F.2d 150

(5th Cir., 1961) 8, 9, 30, 31

Esteban v. Central Missouri State College, 277 F.

Supp. 649 (W.D. Mo., 1967) 30

Freedman v. Maryland, 380 U.S. 51 (1965) ................. 33

Gault, In Re, 387 U.S. 1 (1967) a ae

Goldberg v. Kelly, 397 U.S. 254 (1970) ....9, 12, 17, 21, 22, 29

Graham v. Richardson, 403 U.S, 365 (1971) .. .............. 12

Greene v. McElroy, 360 U.S. 474 (1959) 2... 9

Griswold v. Connectciut, 381 U.S. 479 (1965) 0... 11

iv TaBLe or AutHorities Crrep

Pages

Hamilton v. Regents of University of California, 293

a Ow 28

Hannah v. Larche, 363 U.S. 420 (1960)... 24

Hagopian v. Knowlton, 470 F.2d 20 (2nd Cir., 1972) 30

Healy v. James, 408 U.S. 169 (1972) 20

Jefferson v. Hackney, 406 U.S. 535 (1972) —0.000..... 20

Joint Anti-Fascist Refugee Committee v. McGrath,

Re ee 10, 12, 14, 24

Langnes v. Green, 282 U.S. 531 (1931)... 3

Lau v. Nichols, 414 U.S. 563 (1974) 20

Linwood v. Board of Education, 463 F.2d 763 (7th

Cir., 1972) ee 9

Meyer v. Nebraska, 262 U.S. 390 (1923) 0.0... 12, 13, 14, 28

Minersville School District v. Gobitis, 310 U.S. 586

ETE. <cnstnepdennensstididentsteeiiattiinsiaiieiiin dais 28

Mitchell vy. W. T. Grant Co. 42 U.S.L.W. 4671

GED scccntienivitptetliiteieniniiiesilstaliaiiinieidistieaniitiaaesil 21, 24, 29, 33

Monroe v. Pape, 365 U.S. 167 (1961) 32

Morrissey v. Brewer, 408 U.S. 471 (1972) 200000... 12, 13, 29

North American Storage Co. v. City of Chicago, 211

U.S. 306 (1908). ...................... 33

Orloff v. Willoughby, 345 U.S. 83 (1953) 26

Papish v. Board of Curators of University of Mis-

souri, 410 U.S. 667 (1973) 20

Parker v, Levy, 42 U.S.L.W. 4979 (1974) 25, 26

Pell v. Procunier, 42 U.S.L.W. 5006 (1974) 0000. 25, 26

Perry v. Sindermann, 408 U.S. 593 (1972) ........ 17, 21, 22, 23

Pierce v. Society of Sisters, 368 U.S. 510 (1925) ....12, 15, 28

TaBLe oF AuTHoritTies CrTED Vv

Pages

Richardson v. Belcher, 404 U.S. 78 (1971) ...............-.... 21

R.R. v. Board of Education, 109 N.J. Super. 337, 263

A.2d 180 (1970) 9

San Antonio Independent School District v. Rod-

riguez, 411 U.S. 1 (1973) 15, 20, 21

Slochower v. Board of Education, 350 U.S. 551

(1956) 9, 21, 22

Sniadach v. Family Finance Corp., 395 U.S. 337

(1969) 9, 21

Stanley v. Illinois, 405 U.S. 645 (1972) 14

Story Parchment Co. v. Paterson Parchment Paper

Co., 282 U.S. 555 (1931) 3

Tate v. Board of Education, 453 F.2d 975 (8th Cir.,

1972) 9

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969) 20, 25

U.S. Department of Agriculture v. Murry, 413 U.S.

508 (1973) 13

Walz v. Tax Commissioner, 397 U.S. 664 (1970) .......... 10

Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir.,

|) en Se a ae 9, 30

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1923) ....................... 27, 28

Wieman v. Updegraff, 344 U.S. 183 (1952) . 17, 22

Williams v. Dade County School Board, 441 F.2d 299

(5th Cir., 1971) ... 9,30

Wisconsin v. Constantineau, 400 U.S. 433 (1971) ........ 14, 16

Wolff v. McDonnell, 42 U.S.L.W. 5190 (1974) .............

24, 25, 26, 29, 30, 32

Woods v. Wright, 334 F.2d 369 (5th Cir., 1964) _.......... 30

vi TaBLe or AvuTHoriTiIes CrreD

StTaTures Pages

ee 3

Arkansas Constitution, Art. 14, $1 .0......-...-cccccecceeeeeeenee 18

Arkansas Stat. Ann., §§ 80-1501, 80-1502 and 80-1516

ihe iat aaa ea iaamenneneeeennes 18, 19

OrHerR AUTHORITIES

Books

G. Counts, The American Road to Culture (1930) ...... 27

D. Kirp and M. Yudof, Educational Policy and the

Law (1974) ......... OTC A ES OORT OE 28

ARTICLES

W. Brennan, “Comment: Education and the Bill of

Rights,” 113 U. Pa, L. Rev. 219 (1964) 200... 28

W. Buss, “Procedural Due Process for School Dis-

cipline: Probing the Constitutional Outline,” 119 U.

er 9

W. Seavey, “Dismissal of Students: ‘Due Process,’ ”

EEE 8

L. Tribe, “The Supreme Court, 1972 Term, Foreword:

Toward a Model of Roles in the Due Process of Life

and Law,” 87 Harv. L. Rev. 43 (1973) .......0..00000....... 21

C. Wright, “The Constitution on the Campus,” 22

~ & SS SEER ee 9

In the Supreme Court of the

United States

Ocroper Term, 1973

No. 73-1285

Joun P. Woon, et al.,

Petitioners,

vs.

Proey Srrick.anp, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

Brief Amicus Curiae of the Childhood and

Government Project in Support of

Respondent Children

We present this brief in support of Respondent children

with the consent of the parties pursuant to Supreme Court

Rule 42. Copies of letters of consent are filed herewith.

INTEREST OF AMICUS CURIAE

The Childhood and Government Froject of the Earl War-

ren Legal Institute, The School of Law, University of Cali-

fornia, Berkeley, California, was established in 1972. It is

funded by the Ford Foundation and the Carnegie Corpora-

2

tion of New York. The Project is concerned with all phases

of governmental policy and action which directly affect the

lives of children, particularly in the context of elementary

and secondary schooling. This case is of special interest to

the Project because it raises significant constitutional issues

regarding the kinds of procedural constraints which public

school officials must observe before the opportunity to re-

ceive an education can be withdrawn from a child. At stake

here and of particular concern to Amicus is the question

whether an interest as basic as the opportunity to attend

school can be withdrawn for a substantial period of time, in

the absence of emergency circumstances, without due

process of law.

INTRODUCTION AND STATEMENT OF THE CASE

The most far-reaching issue presented by this case and

briefed by the parties in this Court is an issue which neithe:

court below decided: whether public school suspension and

expulsion procedures must comply with Fourteenth Amend-

ment due process standards. Amicus is particularly con-

cerned, therefore, that this Court—in the process of affirm-

ing the indisputably broad discretionary power of school

officials to discipline students free from excessive inter-

ference by the federal judiciary—not use a case such as

this, in which the core issue has been so tangentially pre-

sented, as a vehicle for dramatically constricting the place

of due process in the school suspension and expulsion con-

text.

The questions presented in the petition for certiorari

could be construed to exclude this basic issue, and to include

only the issue of whether the Court of Appeals was correct

in its conclusions (1) that there was no evidence to support

the Respondents’ expulsion; (2) that such absence of evi-

3

dence cousiituted a basis for action under Title 42 U.S.C.

Section 1983; and (3) that school officials might be held

liable for damages under Section 1983 without a showing of

malice.

This Court might, however, choose to reach the central

issue of fundamental fairness in school suspensions and ex-

pulsions, because Petitioners broadly argue that due proc-

ess does not apply at all in school suspension cases (Peti-

tioners’ Brief, p. 15). The procedural due process issue may

accordingly be subsumed within Petitioners’ first question.

(See Supreme Court Rule 23). Moreover, Respondents,

although not cross-petitioning, have sought to present pro-

cedural arguments to justify the result below. (Response

to Petition, pp. 5, 19, 20, 26). Under similar circumstances,

this Court has previously held that questions such as the

procedural due preeess issue in this case can be reached

and decided. See Langnes v. Green, 282 U.S. 531 (1931);

Story Parchment “o. v. Paterson Parchment Paper Co.,

282 U.S. 555, 560 (1931); Boynton v. Virginia, 364 U.S.

<4, 457 (1960).

Amicus submit» this brief to rebut Petitioners’ claim that

due process has no place in school suspensions and to indi-

cate the constructive role that can be played by due process

in cases where severe penalties, such as lengthy suspensions

and expulsion, are being assessed against specific indi-

viduals. This brief does not address the narrower question

whether the Court of Appeals exceeded its proper role in

determining on the facts of this case that the School Board

had misapplied its own regulation prohibiting the use of

“intoxicating” beverages.

This case arises out of the lengthy suspension of Respond-

ents and one other girl from high school for allegedly

“spiking” the punch at a school function on February 7,

4

1972." The suspensions “for the balance of the semester”

had, as found by the Court of Appeals, the practical effect

of causing the girls to fail their entire sophomore year.

(Petition for Cert., Appendix, p. 3,n. i).

On February 18, 1972, the girls were taken to the prin-

cipal, who suspended them from school on the spot for one

week? and indicated that the matter would at some point be

referred to the School Board for further action. (Appendix,

p. 26). After talking to the girls, the principal arranged for

a meeting of the School Board to be held the same evening

to consider the matter. No notice of the Board meeting was

given either to the girls or to their parents.* (Appendix,

p. 54). Neither the girls nor their parents were present at

the February 18 meeting. Acting in their absence, the Board

that evening suspended the girls for the balance of the term.

(Appendix, p. 105).

Notice of the action already taken was given to Respond-

ents and their parents on February 19. On February 24

1. On February 17, 1972, on urging from their home economics

teacher, Mrs. Powell, the three girls told what they had done. The

Court of Appeals described the incident:

“[O]n the day of the spiking incident, someone (it is not

clear who) suggested that the punch be spiked. The three

girls obtained permission to leave the campus and traveled

to a tavern in Oklahoma where Jo Wall, not a party to this

action, purchased two 12-ounce bottles of a flavored malt bev-

erage, “Right Time.” The three students then purchased six

10-ounce containers of soft drink and combined the total

eighty-four ounces of liquid im a milk carton, and returned

with the mixture to school. To the liquid was then added

enough water to total one and one-half gallons of punch,

which was served at the gathering.” (Petition for Cert.

Appendix p. 2)

2. The principal acted on the mistaken belief—conveyed to him

by one of the girls—that the alcoholic content of Right Time was

20%. (Appendix, p. 52). In point of fact, the aleoholie content,

aceording to the manufacturer, was 3.2% or less. (Appendix, p.

94).

3. Curiously, while no notice was given to the parties directly

affected, notice was given to the press. (Appendix, p. 55).

5

the parents were notified that they could appear before the

next regular meeting of the Board, scheduled for March

14, in order to petition for reinstatement of their daughters.

(Appendix, pp. 137-138). The parents were then informed,

on February 29, that there would be a special meeting of

the Board on March 2, 1972, and that they could appear

with counsel at that meeting. (Appendix, p. 138).

At the March 2 meeting, the Board refused to alter the

action previously taken by it on February 18.

On March 6, 1972, the instant action was filed by Respond-

ents in the Federal District Court, Western District of

Arkansas, alleging a claim under Title 42 U.S.C. Section

1983, and seeking a declaratory judgment, injunctive and

such other relief as would be appropriate. (Appendix, p. 6).

On March 7, 1972, after a hearing, the trial court entered an

order denying Respondents’ motion for preliminary injunc-

tion. (Appendix, p. 84). While expressing considerable con-

cern about the fairness of the procedure and the severity of

the punishment, the trial court held that it was without

jurisdiction to review the action of the School Board. The

trial court entered no formal findings as to the adequacy of

either the February 18 or March 2 School Board actions.

(Appendix, pp. 78-84).

On March 14, 1972, Respondents amended their com-

plaint, adding a claim for damages under Section 1983.

(Appendix, p. 91).

On July 21, 1972, the trial court entered an order denying

Petitioners’ (Defendants’) motion for partial summary

judgment and set the case for trial before a jury. Trial was

held on August 17, 18, 19 and 21, 1972. The jury was unable

to reach a verdict, and a mistrial was declared.

On September 29, 1972, the trial court entered an order

on renewed motion of Petitioners for judgment. The court

6

found that malice had not been shown, and held that Re-

spondents (Plaintiffs) ‘herefore could not sustain an action

for damages under Seetion 1983. Again, the District Court

made no findings regarding the procedural sufficiency of

the School Board actions of February 18 and March 2. (The

opinion of the District Court is incorporated in the Petition

for Cert., Appendix, pp. 15-34).

The Court of Appeals reversed, on the basis that what it

called “substantive due process” had been violated at both

the February 18 and March 2 meetings of the School Board.

In passing, the Court of Appeals also found the February

18 meeting procedurally deficient. Because of its construc-

tion of the case, the court refused to determine whether the

March 2 meeting could have cured the deficiencies in the

February 18 meeting. Thus the case reaches this Court with

no determination, by either federal tribunal below, whether

the Respondents were denied procedural due process by

the manner of their suspensions.

SUMMARY OF ARGUMENT

In Section I, we argue that Respondents’ interest in con-

tinuing their education at a public high school is the kind

of “liberty” and “property” interest protected under the

Due Process Clause. Expulsion from the public school is a

grievous injury to Respondents, interfering greatly with

their life prospects, injuring their reputations in the com-

munity, and depriving them of opportunities to which state

law itself entitles them. The public school systems of this

nation clearly are not enclaves of totalitarianism beyond the

reach of the Fourteenth Amendment, and thus school of-

ficials must provide a fair hearing to students when the

expulsion sanction is employed. In Section II, we outline

the minimum safeguards we believe due process requires in

7

school discipline cases. Finally, in Seciion ITI, we seek to

show that the Fébruary 18 proceeding at which Respond-

ents were suspended did not comply with due process

requirements and that the March 2 meeting of the Board

cannot be said, on this record, to have cured this defect.

Accordingly, we urge this Court to remand for further

proceedings.

ARGUMENT

1. The Due Process Clause Applies to the Respondents’ Expulsion

from Public High School.

A. INTRODUCTION.

More than fifteen years ago, Professor Warren A. Seavey

of the Harvard Law School wrote a short article expressing

outrage at the lack of procedural safeguards for students

expelled or suspended from public schools and colleges. He

noted that the harm to a student stemming from exclusion

was great: the student would have no opportunity to prove

his innocence, the stigma of the alleged wrong would fol-

low the student well beyond the school setting, and, most im-

portantly, the student’s ability to obtain future employment

would be severely curtailed. While the infraction might be

trivial, the punishment certainly was not. He expressed

disbelief that the courts could be moved to extend pro-

cedural due process guarantees in so many areas, while

ignoring the plight of the student entirely at the mercy of

public school authorities :

At this time when many are worried about dismissal

from public service, when only because of the over-

8

riding need to protect the public safety is the identity

of informers kept secret, when we proudly contrast the

full hearings before our courts with those in the be-

nighted countries which have no due process protec-

tion, when many of our courts are so careful in the

protection of those charged with crimes that they will

not permit the use of evidence illegally obtained, our

sense of justice should be outraged by denial to stu-

dents of the normal safeguards. It is shocking that the

officials of a state education institution, which can

function properly only if our freedoms are preserved,

should not observe the elementary principles of fair

play. It is equally shocking to find that a court sup-

ports them in denying to a student the protection given

to a pickpocket.

W. Seavey, “Dismissal of Students: ‘Due Process,’” 70

Harv.L.Rev. 1406, 1407 (1957) (Emphasis added).

Since Professor Seavey wrote his landmark article, the

federal courts have moved forcefully in the direction of

affording procedural due process rights to students at-

tending public educational institutions. The path-breaking

case was Dixon v. Alabama Board of Education, 294 F.2d

150 (5th Cir. 1961), in which Judge Rives, writing for a

unanimous court, rejected the old clichés and formalisms

which, for so long, had denied students their due process

rights. The question was not whether students had a right

to attend public schools or only a privilege to do so, nor

was the question the extent to which parents had delegated

their parental responsibilities to school authorities:

It is not enough to say, as did the district court in the

present case, “The right to attend a public college or

university is not in and of itself a constitutional right.”

... That argument was emphatically answered by the

Supreme Court in [Cafeteria and Restaurant Workers

Union v. McElroy, 367 U.S. 886, 894 (1961)].... “One

may not have a constitutional right to go to Bagdad,

but the government may not prohibit one from going

there unless by means consonant with due process of

law.”

The precise nature of the private interest involved

in this case is the right to remain at a public insti-

tution of higher learning. . . . It requires no ar-

gument to demonstrate that education is vital and,

indeed, basic to civilized society ... [P]laintiffs [were]

.. . . injured by the interruption of their course...

in midterm. Dixon v. Alabama, supra, at 156-157.

The Dixon decision, emanating from a single circuit,

quickly became the law of the land. See generally W. Buss,

“Procedural Due Process for Schoo! Discipline: Probing

the Constitutional Outline,” 119 U.Pa.L.Rev. 545 (1971);

C. Wright, “The Constitution on the Campus,” 22 Vand.L.

Rev. 1027 (1969). Due process rights were extended to

students in public elementary and secondary schools by all

eleven circuit courts of appeal. See, e.g., Williams v. Dade

County School Board, 441 F.2d 299 (5th Cir. 1971); Lin-

wood v. Board of Education, 463 F.2d 763 (7th Cir. 1972) ;

Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir. 1967) ; Tate

v. Board of Education, 453 F.2d 975 (8th Cir. 1972). Many

state courts reached the same conclusion. See, e.g., R.R.

v. Board of Education, 109 N.J. Super. 337, 263 A.2d 180

(1970); Charles S. v. Board of Education, 20 Cal. 3d 83,

97 Cal.Rptr. 422 (1971). Although the principles announced

in non-school cases by this Court amply support the actions

of these state and federal courts,‘ their unanimity is all

4. See, e.g. Goldberg v. or 397 U.S. 254 (1970); Sniadach

v. Family Finance Corp., 395 U.S. 337 (1969) ; Greene v. McElroy,

360 U.S. 474 (1959); Slochower v. Board of Education, 350 U.

551 (1956). fi

10

the more striking in view of the absence of an explicit

Supreme Court ruling in a school expulsion case.

Despite this history, Petitioners argue that due rrocess

guarantees are inapplicable to public high school students.

They ask for the repudiation of a principle which has been

found workable, fair, and not unduly restrictive of the

rightful discretion of public school officials in student dis-

cipline matters ; and the substitution of a principle grounded

on their unsubstantiated fears. If the observance of due

process procedures in the public schools is the first step

toward chaos, “the second step has been long in coming.”

Walz v. Tax Comm’r., 397 U.S. 664, 669 (1970). Thus,

Petitioners ask this Court to wipe out, with one bold stroke,

the progress of nearly fifteen years. They would subject

students to the unfettered authority of school officials to do

grave injury to their life prospects without any opportunity

to refute the charges made against them. To ask the Court

to take this step in an expulsion case, involving a complete

denial of all educational opportunities for a substantial

time, is all the more astounding.

The interest involved in a public school expulsion decision

is precisely the sort of interest that the Due Process Clause

has historically protected. As Mr. Justice Frankfurter

stated, the Court has long recognized “the right to be

heard before being condemned to suffer grievous loss of

any kind even though it may not involve the stigma and

hardships of a criminal conviction.” Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Mr.

Justice Frankfurter, concurring). Respondents suffered

grievous harm in this case, being deprived of all educational

opportunity for a substantial period of time. They had no

choice but to suffer this deprivation in light of the heavy

financial burden of securing a private education. See Gris-

11

wold v. Connecticut, 381 U.S. 479, 525 (1965) (Mr. Justice

White, concurring). In addition, their asserted infraction is

now a part of their permanent record, and thus is likely to

have a continuing impact on their life prospects. Thus, their

expulsion certainly has a stigmatizing effect on them, re-

ducing their standing with peers, teachers, and administra-

tors, and ultimately their ability to secure a higher educa-

tion and gainful employment.

These harms are all the more striking in the absence of

a fair hearing. The particularized standards for expulsion

under Arkansas law and the school’s rules are meaningless

absent a hearing in which Respondents have the opportunity

to present their side of the case. They must be able to at-

tempt to refute the charge that the rules may be appro-

priately applied to punish them for their personal actions.

In this regard, individualized proceedings are absolutely

essential to the illumination of facts bearing on their al-

leged misconduct. Otherwise, there is every reason to

doubt the accuracy of the School Board’s final determina-

tions. Moreover, the legitimacy of the exercise of power by

school authorities is seriously open to question when they

refuse to abide by standards of fairness. Mr. Justice Frank-

furter has stated these underpinnings of procedural due

process with characteristic eloquence:

Man being what he is cannot safely be trusted with

complete immunity from outward responsibility in de-

priving others of their rights. At least such is the con-

viction underlying our Bili of Rights. That a con-

clusion satisfies one’s private conscience does not attest

its reliability. The validity and moral authority of a

conclusion largely depend on the mode by which it

was reached. .. . No better instrument has been devised

for arriving at truth than to give a person in jeopardy

of serious loss notice of the case against him and op-

12

portunity to meet it. Nor has a better way been found

for generating the feeling, so important to a popular

government, that justice has been done.

Joint Anti-Fascist Refuge Comm. v. McGrath, supra, at

171 (Mr. Justice Frankfurter, concurring).

B. RESPONDENTS WERE DEPRIVED OF AN INTEREST IN LIBERTY AND

PROPERTY WHEN THEY WERE EXPELLED FROM PUBLIC HIGH SCHOOL.

The Due Process Clause of the Fourteenth Amendment

does not, of course, apply to all conceivable deprivations

suffered by an individual at the hands of the state. To deter-

mine whether a particular deprivation is within the scope

of the Due Process Clause, the Court has asked “whether

the nature of the interest is one within the contemplation

of the ‘liberty or property’ language of the Fourteenth

Amendment.” Morrissey v. Brewer, 408 U.S. 471, 481

(1972). The interests protected by the Due Process Clause

are not limited to real estate or chattels or to a deprivation

of physical liberty pursuant to the criminal process. Board

of Regents v. Roth, 408 U.S. 564, 572 (1972). See also

Bell v. Burson, 402 U.S. 535 (1971); Pierce v. Society of

Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S.

390 (1923). Nor is the “wooden distinction” between “rights”

and “privileges” determinative of a due process inquiry.

Board of Regents v. Roth, supra, at 571. See also Arnett

v. Kennedy, 94 §.Ct. 1633, 1650 (1974) (Mr. Justice Powell,

concurring in part); Graham v. Richardson, 403 U.S. 365,

374 (1971) (Opinion of Mr. Justice Blackmun); Goldberg

v. Kelly, 397 U.S. 254 (1970).

1. Respondents have been deprived of an interest in liberty.

The notion of liberty embodied in the Due Process Clause

has never been given any precise or limited definition by

this Court. This is altogether appropriate, since “in a von-

13

stitution for a free people, there can be no doubt that the

meaning of ‘liberty’ must be broad indeed.” Board of Re-

gents v. Roth, supra, at 572. The framers did not lightly

assume that what was not expressly forbidden to govern-

ment was a proper subject for unlimited government in-

tervention; for much of the private role of the individual,

assumed by all as “essential to the orderly pursuit of hap-

piness by free men,” would then be overwhelmed by govern-

mental decision-making. Meyer v. Nebraska, supra, at 399.

However, to guarantee such liberty absolutely would be to

force the constitution into an undue restraint upon the op-

erations of the government. The brilliant answer to this

dilemma, embodied in the Due Process Clauses of the 5th

and 14th Amendments, was that the private liberties of the

people could be curtailed only where the state observed

stringent standards of fairness. As Mr. Justice Marshall

has put the matter:

One aspect of fundamental fairness, guaranteed by

the Due Process Clause of the Fifth Amendment, is

that individuals similarly situated must receive the

same treatment by the Government . . . It is a corollary

of this requirement that, in order to determine whether

persons are indeed similarly situated, “such procedural

protections as the particular situation demands” must

be provided. Morrissey v. Brewer, 408 U.S. 471, 481

(1972).

U.S. Department of Agriculture v. Murry, 413 U.S. 508,

517 (1973) (Mr. Justice Marshall, concurring). If adequate

hearing procedures were observed, if a fair and even-

handed application of the 'aw were required, then, by defini-

tion, government would not lightly interfere with the lib-

erties of the people.

Against this basic philosophical background, the Court

has described an interest as falling within the concept of

14

“liberty” under the Due Process Clause in circumstances in-

volving no physical restraint: when the government inter-

feres with the well-established prerogative of an individual

to relate to other private parties, particularly in the family

context, or to develop his »ersonality and intellect (Board of

Regents v. Roth, supra, at 572; Meyer v. Nebraska, supra,

at 399; Stanley v. Illinois, 405 U.S. 645 (1972)); and when

the government acts against the individual in such a fashion

that his “good name, reputation, honor or integrity is at

stake,” Wisconsin v. Constantineau, 400 U.S. 433, 437

(1971). See aso Arnett v. Kennedy, supra, at 1647, 1648

(Plurality opinion of Mr. Justice Rehnquist); Board of

Regents v. Roth, supra, at 573. In the second group

of cases, it is not so much the particular denial which

leads to the characterization of the interest as a liberty—

for example, the loss of public employment; rather, the

manner in which the denial takes place is deemed to be

critical. The denial may so stigmatize and injure the reputa-

tion of a citizen that it greatly and adversely affects his

ability in the future to conduct his personal affairs, that is,

to interact with private and public parties for his benefit.

Board of Regents v. Roth, supra, at 574; Arnett v. Kennedy,

supra, at 1646 (Plurality opinion of Mr. Justice Rehnquist) ;

Joint Anti-Fascist Refugee Comm. v. McGrath, supra,

at 185 (Mr. Justice Jackson, concurring). In this sense,

the two lines of cases merge to protect one broad interest

of the individual in liberty.

When this Court has provided illustrations of protected

liberty interests, it has inevitably included the opportunity

of an individual “to contract, to engage in any of the com-

mon occupations of life, to acquire useful knowledge, to

marry, establish a home and bring up children.” Meyer

v. Nebraska, supra, at 399 (Emphasis added). See also

- &

Board of Regents v. Roth, supra, at 572. The oppor-

tunity to remain in public school obviously is encompassed

by these interests. Is not education the key to an individual’s

employment opportunities? Is not public schooling the most

common way of acquiring useful knowledge? Is not public

schooling, at least in the twentieth century, an integral part

of the raising of children? Indeed, on a number of occa-

sions, this Court has gone even further. In Pierce v.

Society of Sisters, swpra, the Court held that the state

could not lightly interfere with the ability of parents to

send their children to private schools, let alone their oppor-

tunity to send their children to the schools established by

the community for public benefit. Where the state has

chosen to establish a public school system, should not the

opportunity to attend a public school be afforded a similar

status? Indeed, in San Antonio Independent School Dis-

trict v. Rodriguez, 411 U.S. 1, 25 n. 60 (1973), Mr. Justice

Powell, writing for the majority, intimated that if a child

were “absolutely precluded from receiving an education,”

a more compelling case for judicial intervention would be

posed than was presented by the merely relative financial

disparities demonstrated in that case. If complete exclusion,

as here, may give rise to substantive constitutional con-

cerns under the Equal Protection Clause, the case is even

more persuasive for affording minimal due process guaran-

tees so that the individuals injured may challenge the evi-

dentiary basis for their expulsion, and participate in the

decisions that so intimately affect their lives. Cf. Board

of Regents v. Roth, swpra, at 575 n. 14.

If the question is approached from the perspective of

stigmatization and injury to reputation, the characteriza-

tion of Respondents’ interest as liberty within the scope of

the Due Process Clause is even clearer. Even where govern-

16

ment’s power over a particular matter is virtually p!enary,

if the basis of the government’s decision is such that it

“might seriously damage his standing and the associations

in his community,” notice and an opportunity to be heard

are required. Board of Regents v. /:oth, supra, at 573.

Compare Wisconsin v. Constantineau, supra, at 437 with

California v. LaRue, 409 U.S. 109 (1972). The operative

concept is one of grievous injury beyond that which would

normally occur as a result of the government’s decision.

Respoiulents are obviously stigmatized and injured in a

number of ways by virtue of their exclusion for violat-

ing the school rule prohibiting intoxicating beverages. The

interruption of their schooling has a dramatic impact on

their grades and their ability to complete their education.

Here Respondents, in effect, failed their sophomore year

of high school. Their alleged infraction becomes a part of

their permanent record, thereby influencing adversely their

prospects of securing admission to institutions of higher

learning or obtaining a decent job. Moreover, and most im-

portantly, these children have been labeled as deviant and

their activities as unlawful. In violation of the ‘spirit if

not the letter of state law, they are accused as minors of

illegally obtaining an alcoholic beverage and making it avail-

able to still other minors. Teachers, parents, and their

peers may treat them as rebellious, as unable to abide by

reasonable standards imposed by society. Such expecta-

tions, accompanied by lower self-esteem, may well become

self-fulfilling prophecies. In short, whatever the genera!

power of state authorities to exclude students from the pub-

lie schools, the manner of exclusion in this case, dramati-

cally injuring Respondents’ life prospects and their stand-

17

ing in the community, requires the observance of the basic

guarantees of procedural due process.

2. Respondents have been deprived of on interest in property.

In Board of Regents v. Roth, supra, and Perry v. Sin-

dermann, 408 U.S. 593 (1972), Mr. Justice Stewart, writ-

ing for the Court, established the currently applicable

framework for analyzing whether a particular interest fell

within the concept of “property” under the Due Process

Clause :

To have a property interest in a benefit, a person

clearly must have more than an abstract need or desire

for it. He must have more than a unilateral expectation

of it. He must, indeed, have a legitimate claim of en-

titlement to it . . . Property interests, of course, are

not created by the Constitution. Rather, they are

created and their dimensions are defined by existing

rules and understandings that stem from an inde-

pendent source such as state law—rules or understand-

ings that secure certain benefits and that support

claims of entitlement to those benefits.

Board of Regents v. Roth, swpra, at 577. See also Arnett v.

Kennedy, supra, at 1650 (Mr. Justice Powell, concurring in

part). The question then is whether the state so acted (by

statute, rule, understanding, guideline or contract) as to

give rise to a justifiable expectation of continued enjoy-

ment of the state-provided benefit. See, e.g. Goldberg v.

Kelly, supra; Arnett v. Kennedy, supra, at 1650 (Mr. Jus-

tice Powell, concurring in part); Perry v. Sindermann,

supra; Wieman v. Updegraff, 344 U.S. 183 (1952). A uni-

lateral expectation, a mere hope which is not based upon

any act of the state, will not suffice. Board of Regents v.

Roth, supra.

While Petitioners would have it that Respondents’ er-

pectation of continued public schooling is based upon noth-

18

ing more than their active imaginations, those expectations

are in fact rooted solidly in and arise from the positive law

of the State of Arkansas. The Arkansas Constitution pro-

vides that:

Intelligence and virtue being the safeguards of liberty

and the bulwark of a free and good government, the

State shall ever maintain a general, suitable and ef-

ficient system of free public schools and shall adopt all

suitable means to secure to the people the advantages

and opportunities of education.

Art. 14, See. 1, Arkansas Constitution (1973). The state has

thus undertaken an obligation to provide free public schools

to its people. This provision, as implemented by the state

when it established a system of public elementary and

secondary education, and as reinforced when it made public

education mandatory, secures for the children of Arkansas

an entitlement to the benefits of public schooling and a

legally sanctioned expectation of the continuation of their

education in the absence of some particular justification for

its termination.

Article 14 is further reinforced by a number of specific

statutory enactments. Section 80-1501, Ark. Stat. Ann.

(1973), for example, specifically states that “the public

school district shall be open and free to all persons between

the ages of six and twenty-one years, residing in that dis-

trict ..... ” (Emphasis added). Further, Section 80-1502,

Ark. Stat. Ann. (1973), requires parents of children between

the ages of seven and fifteen to send their children to public

or private school under penalty of fine or prosecution. And

Section 80-1516, Ark. Stat. Ann. (1973), restricts both the

grounds for suspension from public schooling and the length

of the suspension :

19

The directors of any school district may suspend any

person from school for immorality, refractory conduct,

insubordination, infectious disease, habitual unclean-

liness or other conduct that wou'd tend to impede the

discipline of the school, or harm the other pupils, but

such suspension shall not extend beyond the current

term. The board of directors may authorize the teacher

to suspend any pupil, subject to appeal to the board.

The thrust of these statutory provisions is that Arkansas

at every turn affirms the expectation that Kespondents will

remain in the public school system until the twelfth grade

so long as they do not engage in certain specified forms of

misconduct. Indeed, the failure to attend the public schools

gives rise to sanctions against the parents of the truant

children. Thus, this case presents an even clearer case for

finding a property entitlement than does the Court’s de-

cision in Arnett v. Kennedy, supra, in which six Justices

held that a federal statute guaranteeing continued employ-

ment absent “cause” for discharge creates a sufficient prop-

erty interest for due process purposes despite the statute’s

explicit provision that no hearing need be held. Jd., at 1650

(Mr. Justice Powell, joined by Mr. Justice Blackmun, con-

curring in part), at 1660 (Mr. Justice White, concurring in

part and dissenting in part), at 1669 (Mr. Justice Douglas,

dissenting), at 1673 (Mr. Justice Marshall, joined by Mr.

Justice Douglas and Mr. Justice Brennan, dissenting).

Finally, it should be noted that Arkansas law does not

specify any particular procedures which are required, or

any which are to be foregone, when a student is alleged to

have engaged in conduct forbidden by Section 80-1516, Ark.

Stat. Ann. (1973). Thus this case is clearly more compelling

than Arnett v. Kennedy, supra. For as Mr. Justice Rehn-

quist noted in Arnett,

20

[T]he very section of the statute which granted [the

Appellee] that right [to continuing employment except

for cause] . . . expressly provided also for the pro-

cedure by which “cause” was to be determined, and ex-

pressly omitted the procedural guarantees which Ap-

pellee insists are mandated by the Constitution. Only

by bifurcating the very sentence of the Act of Congress

which conferred upon Appellee the right not to be re-

moved save for cause could it be said that he had an

expectancy of that substantive right without the pro-

cedural limitations which Congress attached to it.

Id., at 1643 (plurality opinion of Mr. Justice Rehnquist).

Compare id. at 1642 (Mr. Justice Powell, concurring).

Respondents’ justifiable expectations here were in no way

diminished, as they at least arguably had been in Arnett,

by the specification of procedures for suspension. Rather,

the state statute addressed itself only to the substantive

ground for suspension, a matter not here in dispute.

3. Petitioners Misconstrue Sen Antonio independent School District v. Rod-

riguez, 411 U.S. 1 (1973).

Petitioners place great emphasis on San Antonio Inde-

pendent School District v. Rodriguez, 411 U.S. 1 (1973).

They argue, in effect, that Rodriguez completely insulates

the actions of public school administrators from judicial re-

view. That interpretation is plainly incorrect. See, e.g.,

Lau v. Nichols, 414 U.S. 563 (1974); Cleveland Board of

Education v. LaFleur, 414 U.S. 632 (1974) ; Papish v. Board

of Curators of Univ. of Mo., 410 U.S. 667 (1973) ; Healy v.

James, 408 U.S. 169 (1972); Tinker v. Des Moines Inde-

pendent Community School District, 393 U.S. 503 (1969).

From a narrower, though equally indefensible, perspective,

Petitioners argue that this Court’s determination in Rod-

21

riguez that education is not a fundamental interest for equal

protection purposes is also conclusive with respect to its

characterization as a liberty or property interest under

the Due Process Clause. The premise of this argument is

misleading; for this Court has never indicated that a com-

plete denial of all educational opportunities, as in this case,

would fail to give rise to a valid equal protection claim.

The Court in Rodriguez simply held that relative inequalities

in the distribution of a public resource, absent discrimina-

tion against a suspect class, should be tested by the tradi-

tional rational basis standard under the Fourteenth Amend-

ment. See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970) ;

Richardson v. Belcher, 404 U.S. 78 (1971); Jefferson v.

Hackney, 406 U.S. 535 (1972). See L. Tribe, “The Supreme

Court, 1972 Term, Foreword: Toward a Model of Roles in

the Due Process of Life and Law,” 87 Harv.L.Rev. 1, 43-44

(1973). But more important, the adoption by this Court of

Petitioners’ argument would require the overruling of

Board of Regents v. Roth, swpra, and a long line of pro-

cedurai due process decisions by this Court. See, e.g., Mit-

chell v. W. T. Grant, 42 U.S.L.W. 4671 (1974) ; Goldberg v.

Kelly, supra; Sniadach v. Family Finance Corp., supra;

Slochower v. Board of Education, supra; Connell v. Hig-

genbotham, 403 U.S. 207 (1971); Bell v. Burson, supra.

To begin with, this Court has never held that there must

be a substantive constitutional entitlement to a particular

benefit under the Constitution before the guarantees of

procedural due process attach. In Perry v. Sindermann,

supra, for example, Professor Sindermann never asserted,

nor would the Court have perceived that he had, a right

secured by the federal Constitution to teach at the Odessa

Junior College. Nonetheless, this Court held that, if Sinder-

mann could show the requisite property interest (by demon-

22

strating a reasonable expectancy of continued employment

under an implied contract with the state), he would be en-

titled to due process procedures before nonrenewal of his

contract. Id. at 603. See also Slochower v. Board of Educa-

tion, swpra; Wieman v. Updegraff, supra. Similarly, in

Goldberg v. Kelly, swpra, the Court never held that the

plaintiffs were entitled to welfare benefits as a matter of

federal constitutional law. See also Dandridge v. Williams,

supra. Nonetheless, the state was required to afford a due

process hearing prior to the termination of those benefits.

Id., at 264. The point is amply and poetically made by

the often quoted language from Cafeteria and Restaurant

Workers Union v. McElroy, supra, at 886: “One may

not have a constitutional right to go to Bagdad, but the

government may not prohibit one from going there unless

by means consonant with due process of law.”

Thus, whether the denial of all educational opportunities

by the state would constitute a substantive deprivation of a

constitutional right is irrelevant to the question of whether

or not due process procedures must accompany that depri-

vation. As Section IB, subsections 1 and 2, supra, demon-

strated, Respondents’ interest in continuing their education

ean be and should be characterized as both a liberty and

property interest. These students are entitled, therefore,

to notice and a fair hearing whatever the status of their

substantive claim.

The other fatal flaw in Petitioners’ argument is a dis-

regard for the nature of the property interests encompassed

by the Due Process Clause. Property interests are created

by state law or by other enactments and actions of state

officials. Such interests are not creatures of the federal

Constitution :

[The] point is that the relationship between a state

institution and one of its teachers is essentially a

matter of state concern and state law. The Court holds

today only that a state-employed teacher who has an im-

plied contract, has, in turn, a right guaranteed by the

Fourteenth Amendment to some form of prior adminis-

trative or academic hearing on the cause for non-

renewal of his contract. Thus [the issue] hinges on a

question of state law. The Court’s opinion makes this

point very sharply: “Property interests ... are created

and their dimensions are defined by existing rules or

undersiandings that stem from an independent source

such as state law ....” Board of Regents v. Roth, supra,

at 577. (Emphasis added)

Perry v. Sindermann, supra, at 604 (Mr. Chief Justice

Burger, concurring) (Emphasis added). To be sure, once the

state creates a property interest, the scope of the due prec-

ess guarantees to be afforded the injured party is a matter

of federal constitutional law. See Arnett v. Kennedy, supra

(Mr. Justice Powell, concurring in part). But it is the state

that defines the underlying interest in the first instance. In

this case, therefore, the question is not whether education is

a substantive entitlement under federal law, but whether

there is some entitlement to education, or at least a justified

expectancy of continued education, under Arkansas law.

Since the latter question must be answered in the affirmative

(see part IB2, supra), the status of education as a non-

protected interest under an equal protection challenge to

inequalities in its distribution is irrelevant for the pur-

pose of applying the Due Process Clause to a complete de-

privation of educational opportunity.

24

C. THE PUBLIC SCHOOLS ARE NOT “ENCLAVES” BEYOND THE REACH

OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

The thrust of Petitioners’ brief is that public schools

present such a specialized environment that due process

rights have no application to decisions of school authorities.

Petitioners’ Brief, p. 14.) Even if Respondents’ interest in

remaining in the public schools can be aptly characterized

as a liberty or property interest, they assert that institu-

tional concerns render inappropriate the application of due

process restraints on governmental decision-making. To the

extent that Petitioners mean to assert that the form and

timing of the required hearing must be determined by a

weighing of the interest of the individual in fairness against

the state’s interest in efficiency, we have no difficulty with

their position. The requirements of due process are flexible

and may be varied as circumstances compel. See, e.g., Joint

Anti-Fascist Refugee Comm. v. McGrath, supra, at 168. (Mr.

Justice Frankfurter, concurring); Cafeteria and Restau-

rant Workers Union v. McElroy, supra, at 895; Hannah v.

Larche, 363 U.S. 420, 440, 442 (1960). Recent decisions of

this Court affirm this position. See, e.g., Arnett v. Kennedy,

supra, at 1652 (Mr. Justice White, concurring in part and

dissenting in part); Calero-Toledo v. Pearson Yacht Leas-

ing Co., 42 U.S.L.W. 4693 (1974); Wolff v. McDonnell,

42 U.S.L.W. 5190 (1974); Mitchell v. W. T. Grant, supra.

But to the extent that their argument is to be taken at face

value, as an argument that the Court should weigh the com-

peting interests on the threshold question of the applicabil-

ity of the Due Process Clause, it must be categorically re-

jected:

“... a@ weighing process has long been a part of any

determination of the form of hearing required in a

particular situation by procedural due process. But to

determine whether due process requirements apply in

the first place, we must look not to the “weight” but to

the nature of the interest at stake .... We must look to

see if the interest is within the Fourteenth Amend-

ment’s protection of liberty and property.” Board of

Regents v. Roth, swpra, at 570, 571.

The public schools are not enclaves of totalitarian-

ism wholly beyond the reach of the Fourteenth Amend-

ment. Cf. Tinker v. Des Moines Independent Community

School Dist., supra. This Court addressed itself to the

“enclave” theory in a number of military and prison cases

decided last term. See, e.g., Parker v. Levy, 42 U.S.L.W.

4979 (1974) (military) ; Pell v. Procunier, 42 U.S.L.W. 5006

(1974) (prisons) ; Wolff v. McDonnell, swpra, (prisons). In

not a single instance did any Justice reject the application

of due proces standards in the area under consideration, In

Parker v. Levy, supra, both the majority and the dissent

applied the doctrines of vagueness and overbreadth to the

Code of Military Justice. What divided the Justices was

the scope of those doctrines and the nature of their appli-

cation in a military setting, not the more fundamental issue

of applicability. Similarly, in Wolff v. McDonnell, supra,

Mr. Justice White, writing for the majority, made it quite

clear that due process rights are available to prison

inmates:

The State of Nebraska asserts that the procedure for

disciplining prison inmates for serious misconduct is

a matter of policy raising no constitutional issue. If the

position implies that prisoners in state institutions are

wholly without protections of the Constitution and the

Due Process Clause, it is plainly untenable. Lawful

imprisonment necessarily makes unavailable many

rights and privileges of the ordinary citizen .... But

though his rights may be diminished by the needs and

exigencies of the institutional environment, a prisoner

is not wholly stripped of constitutional protections

when he is imprisoned for crime. There is no iron

26

curtain drawn between the Constitution and the prisons

of this country .... The prisoner may . . . claim the

protections of the Due Process Clause. He may not be

deprived of his life, liberty or property without due

process of law.

Id. at 5195. (Emphasis added). The only question in the

case was how to reach an “accommodation between institu-

tional needs and objectives and the provisions of the Con-

stitution that are of general application,” id. at 5196, and

it was only here that the majority and the dissent disagreed.

If the Due Process Clause applies to prison inmates and

members of the armed forces, it is preposterous to assert

that it has no application to the nation’s public school stu-

dents. The military is a “specialized society separate from

civilian society.” Parker v. Levy, supra, at 4982. It is a

tightly organized society, designed to fight and be ready to

fight wars, and dedicated to the survival of the nation. “Its

law is that of obedience. No question can be left open as to

the right to command in the officer, or the duty of obedience

in the soldier.” Orloff v. Willoughby, 345 U.S. 83, 94 (1953).

So too, the prison inmate, by the very nature of incarcera-

tion for a crime, must be limited in his assertion of rights

and privileges under the Constitution. As Mr. Justice

Stewart stated in Pell v. Procunier, supra:

An important function of the corrections system is

the deterrence of crime. .. . [Incarceration] . . . also

serves a protective function by quarantining criminal

offenders for a given period of time while, it is hoped,

the rehabilitative processes of the corrections system

work to correct the offender’s demonstrated criminal

proclivity. . . . Finally, central to all other corrections

goals is the intitutional consideration of internal secu-

rity within the corrections facilities themselves.

Id. at 4999. The very statement of the distinguishing fea-

tures of military and prison life underscores the inappro-

27

priateness of applying standards derived from those set-

tings to public schooling.

That the children of Arkansas are required to attend

public schools in no way intimates that they are to be

treated as prison inmates. They are not violators of the

criminal law, they are no‘ being “rehabilitated,” and it is

hyperbolic and inaccurate to suggest that school discipline

problems approach those of penal institutions. Nor is mili-

tary life a close parallel. To be sure, public school students

have an obligation, not at issue here, to obey teachers and

administrators, but the hardened discipline of military life,

necessitated by considerations of national defense, does not

have any counterpart in the modern public school. In short,

the institutional role of the public schools is to educate our

children to the skills and values necessary for economic

well-being and participation in democratic government.

While discipline plays its role, the overriding aims are to

communicate information, provoke discussion and analysis,

and promote the intellectual growth of the students. The

restrictions on individuals necessitated by such goals, even

in a compulsory setting, are significantly less far-reaching

than in the military or penal institutions.

The role of the public schools in socializing children to

American political values has always been recognized by

citizens and educators (see generally G. Counts, The Amer-

ican Road to Culture (1930)) and has never been seriously

challenged by this Court. As Mr. Justice Jackson stated

in West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1923), “The State may ‘require teaching by,

instruction and study of all in our history and in the struc-

ture and organization of our government, including the

guarantees of civil liberty, which tend to inspire patriot-

28

ism and love of country.’” Jd. at 63, quoting from Miners-

ville School District v. Gobitis, 310 U.S. 586, 604 (1940)

(Mr. Chief Justice Stone, dissenting). See also Abiington

School District v. Schempp, 374 U.S. 203, 230 (1963) (Mr.

Justice Brennan, concurring) ; Pierce v. Society of Sisters,

supra; Meyer v. Nebraska, supra, cf. Hamilton v. Regents

of Univ. of Cal., 293 U.S. 245 (1934). But schools dio not

communicate exclusively through the planned curriculum.

See generally D. Kirp and M. Yudof, Educational Policy

and the Law, pp. 126-132 (1974). If children are to learn

the American democratic ethic, the actions of school amthor-

ities must be consistent with that ethic. See W. Brennan,

“Comment: Education and the Bill of Rights,” 113 U..Pa.L.

Rev. 219, 225 (1964). The schools cannot teach respect for

the Bill of Rights and the requirements of due process if

they flout it in their every action with respect to the welfare

of their students. Thus, adherence to due process standards

in the public schools, far from being inconsistent witth in-

stitutional goals, is vital to their accomplishment. If’ any-

thing, the public school system should be an “enclave” in

which constitutional imperatives are more closely observed

than in the society at large.

il. In Cases of Lengthy School Suspensions Due Process Re«quires

Notice and a Meaningful and Timely Opportunity tto Be

We have argued above that that Due Process Cllause

should apply to school expulsion cases, entitling Restpond-

a res

— ay

A te

—— re

29

ents to procedural protection. School children are neither

convicted criminals in penal institutions nor members uf

the armed forces bound by the military traditien of obedi-

ence and discipline. But whatever the validity of these

distinctions, it is clear beyond any doubt that the nation’s

school children must be afforded, at a minimum, the same

procedural rights available to prisoners and servicemen.

To do less would be to declare that the public schools are

indeed enclaves of arbitrariness, enclaves beyond the reach

of the Constitution, and that convicted criminals are en-

titled to a procedural fairness unavailable to our children.

The minimum requirements of due process are straight-

forward and non-onerous: a student subject to the denial of

all educational opportunity for a substantial period of time

must be accorded the following procedural rights:

1. “Advance written notice of the claimed violation

and a written statement of the fact findings as to the

evidence relied upon and the reasons for the discipli-

nary action taken.” Wolff v. McDonnell, 42 U.S.L.W.

5190, 5198 (1974).

2. A meaningful opportunity to be heard, including

the opportunity to present documentary evidence and

to call witnesses if it would not be unduly disruptive

of the educational process. Cf. id.

3. A prompt hearing, which, absent extraordinary

circumstances, must precede the suspension. Compare

Goldberg v. Kelly, 397 U.S. 254 (1970) with Calero-

Toledo v. Pearson Yacht Leasing Co., 42 U.S.L.W.

4693 (1974).

4. An impartial tribunal, id. at 5200, which is em-

powered to render a decision in the students’ favor.

See also Arnett v. Kennedy, 94 S.Ct. 1633 (1974);

Mitchell v. W. T. Grant Co., 43 U.S.L.W. 4671 (1974);

Morrissey v. Brewer, 408 U.S. 471 (1972); Goldberg

v. Kelly, supra.

If these rights are not extended to students, there can be

no confidence in the rightness of the administrative deter-

30

mination of their case or in the legitimacy of the proceeding.

Notice of the charges enables the student to marshall the

facts and prepare his defense. Wolff v. McDonnell, supra,

at 5198. Written records of the proceeding will enable the

student to protect himself against collateral consequences

based upon a misunderstanding of the nature of his mis-

conduct, and to defend his cause before other tribunals. Jd.

The opportunity to be heard and to present documentary

evidence and call witnesses assures the reliability of the

school board’s ultimate conclusions. And, obviously, the im-

partiality of the tribunal deciding the case is an absolute

precondition to the rendering of a reliable and credible

decision. Finally, the reasons for a prior hearing absent

extraordinary circumstances are evident. Not only can an

individual be significantly damaged by action taken before

a hearing—the stigma of expulsion and lost school time

in this case cannot be taken lightly—but in addition, be-

cause the posture of the parties changes, the issues may

well be determined without fully open-minded considera-

tion. For the decider may develop a stake in the action

already taken without a proper hearing, and the position

of the expelled student shifts from that of party to a dis-

pute to that of supplicant with an attendant shift in pre-

sumption and burdens.

The federal court cases following Dizon v. Alabama

State Board of Education, 294 F.2d 15 (5th Cir. 1961),

have uniformly required these minimum ingredients. See,

for example, Hagopian v. Knowlton, 470 F.2d 201 (2nd

Cir., 1972); Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir.,

1967); Woods v. Wright, 334 F.2d 369 (5th Cir., 1964);

Williams v. Dade County School Board, 441 F.2d 299 (5th

Cir., 1971) ; Zsteban v. Central Missouri State College, 277

F. Supp. 649 (W.D. Mo. 1967). Following the suggestion

of Judge Rives in Dixon that the precise nature of the

required hearing could only be determined from the cir-

cumstances of the particular case, there has been consider-

—— sme

oS re Wee anes

ee

31

able variation in the decisions about issues like the degree

of formality and promptness required of a hearing, pres-

ence of counsel, and the right to cross-examine witnesses.

But there has been unanimity about the irreducible mini-

mum.

This view of the minimal procedural guarantees required

under the Due Process Clause does not suggest that a school

discipline hearing must include the full panoply of pro-

eedural rights accorded a criminal defendant. Cf. In Re

Gault, 387 U.S. 1 (1967). But those elements—listed above

—which express “the rudimentary elements of fair play”

must be observed. Dixon v. Alabama State Board of Edu-

cation, supra, at 159. Moreover, this case does not require

this Court to decide what protections, if any, might be

required for very short-term suspensions or other instances

of insignificant punishment, for this case clearly involves

serious punishment under any conceivable view of that term.

tl. Because Respondents in This Case May Not Have Been

Accorded the Required Procedural Safeguards, the Case

Should Be Remanded.

A. THE FEBRUARY 18, 1972 MEETING OF THE SCHOOL BOARD CLEARLY

DID NOT REFLECT THE MINIMUM ELEMENTS OF DUE PROCESS.

The Board meeting was held on the evening of the

same day that the Principal, Mr. Waller, suspended Re-

spondents for one week. No notice of the Board Meeting

was given to either Respondents or their parents. (Appen-

dix, p. 54). The Principal had told Respondents merely

that the matter would at some time be taken before the

Board, and that their parents were permitted to be present

at the Board meetings. Since this general statement to

Respondents was made before the date or time for the

meeting was set, this could hardly be considered notice—

nor has anyone seriously suggested that it was. Neither

Respondents nor their parents were present at the Feb-

32

ruary 18 Board meeting. If they had been present, they

would have had an inadequate time to prepare their de-

fense. Wolff v. McDonnell, 42 U.S.L.W. 5190, 5198 (1974).

In short, there was not a single element of even a minimal

due process hearing observed at the February 18 meeting.

8. THE MARCH 2 BOARD MEETING MAY NOT HAVE CURED THE PRO-

CEDURAL DEFECTS OF THE PRIOR MEETING.

The record with respect to the March 2 meeting is fatally

defective. The District Court, in holding for Petitioners,

erroneously considered absence of malice dispositive.’ At

no stage of its proceedings did the District Court enter

findings of fact as to the procedural adequacy of the dis-

ciplinary actions of the School Board. It entered no find-

ings:

1. On Respondents opportunity to present evidence

at the meeting of March 2, 1972;

2. As to whether the March 2 meeting was sufficient

to remedy the deficiencies of the February 18 meeting;

or

3. Whether, if there was a “hearing,” it was timely.

Although the Court of Appeals expressed a view that

the March 2 meeting of the Board might have cured the

February 18 deficiencies, it quite explicitly refused to decide

that question, because it based its reversal on its view that

neither Board Meeting had accorded Respondents their

5. While it may be arguable that School Board members should

be immune from punitive damages in the absence of a showing of

malice, the complaint in this case also sought equitable relief, in-

cluding “all other relief to which Plaintiffs may be entitled.”

(Appendix, p. 12). With regard to such equitable relief, or com-

pensatory damages, this Court’s earlier decisions make it quite

clear that a showing of malice is not essential. Monroe v. Pape,

365 U.S. 167 (1961) (the term “wiliful” was not read into 1983).

If the Respondents’ Fourteenth Amendment rights were violated,

they would be entitled to have their expulsion stricken from their

records whether or not there is a showing of malice.

“substantive due process” rights. (Petition for Cert., p.

A. 6).

1. The record fails to establish the timeliness of the March 2 hearing.

The decisions of this Court establish a presumption in

favor of a prior hearing. That presumption can be overcome

only when a prior hearing would substantially jeopardize

significant interests of the public, see e.g. Calero-Toledo v.

Pearson Yacht Leasing Co., 42 U.S.L.W. 4693 (1974);

North American Storage Co. v. City of Chicago, 211 US.

306 (1908), or where a subsequent hearing can plausibly be

said to reflect a fair accommodation of competing private

interests. See Mitchell v. W. T. Grant, 42 U.S.L.W. 4671

(1974).

Nothing in this record suggests that any significant inter-

est would have been impaired had the School Board com-

plied with the prior hearing requirement. Of course, one

can imagine justifications for suspending students pending

the outcome of a procedurally adequate hearing. But none

are revealed here. We do not urge the Court, however, to

affirm the decision below; the School Board should be given

an opportunity on remand to establish extraordinary cir-

cumstances.

Moreover, if the Court holds that a prior hearing is not

presumptively required, or if Petitioners on remand should

establish extraordinary circumstances, there still remains

the question of the promptness of the hearing after exclu-

sion. Mitchell v. W. T. Grant, supra; Freedman v. Maryland,

380 U.S. 51 (1965). If a hearing is not held expeditiously,

students may be deprived of their right to attend school

for a substantial period of time without any opportunity

to assert and prove their innocence. We do not think it

appropriate to urge this Court to decide in the first instance

whether the March 2 hearing—12 days after the defective

34

hearing of February 18—would have met the constitutional

requirement of promptness. We do think it appropriate,

however, to urge the Court to underscore the significance

of promptness as a matter of due process and to insist that

the lower federal courts not approve the imposition of

serious punishment without a specific finding that a prompt

as well as procedurally adequate hearing has been held, a

finding neither court below has made.

But even if the March 2 hearing is regarded as timely,

there are serious reasons to doubt its adequacy.

2. The record fails to establish thet the Merch 2 meeting provided a mean-

lagful opportunity to be heard.

a. The record suggests that the March 2 hearing may have been limited

to the issue of punishment.

The Superintendent of Schools, in his initial letter to

Respondents’ parents informing them of the March 2 hear-

ing, told them of their right to petition the School Board

for “reinstatement” of their children. (Appendix, pp. 137-

138). As the Board’s own minutes reveal, the March 2

hearing began with a statement by the Board’s counsel of

“facts established” at the February 18 meeting. (Appendix,

p. 106). Consistent with the Superintendent’s letter and the

Board’s minutes, the record reveals no attempt at the March

2 hearing to dispute the underlying facts, but only an effort

to persuade the Board that the punishment was excessive.

If indeed no other issue was open on March 2, the hearing

on that date obviously could not have cured the defects of

the February 18 proceeding. At very least, this case should,

therefore, be remanded for a determination of the scope of

the hearing held on March 2.

sn nel eed

-

ee

b. Even if the Merch 2 hearing was not limited to the punishment issue.

lt may heve deen teinted by the Board's own prior action.

As we have urged in Section II, one of the reasons for

a presumptive requirement of a prior hearing is the risk

that a subsequent hearing will constitute only a perfunctory

review of an action in which the decider has acquired a

vested interest. Even if the Court is unprepared to hold on

this theory that the March 2 hearing, absent extraordinary

circumstances, came too late, and even if the March 2 hear-

ing is found to have been of sufficiently broad scope, the

distinct possibility remains that the School Board did not

approach its task on March 2 as a truly impartial tribunal.

Deeming the “facts” to have been “established”, it might

simply have proceeded in a manner calculated to vindicate

its own prior conclusions. Although it is certainly arguable

that the Board should have an opportunity on remand to

establish that this did not occur, the absence of any finding

by the courts below on the impartiality of the Board as of

March 2 precludes a conclusion on this record that the

hearing of that date cured the procedural inadequacy of

the meeting which preceded it.

For the reasons stated above, if the Court in the context

of this case decides questions relating to the procedural

rights of Respondents, this Court should declare that due

process guarantees Respondents a meaningful and timely

opportunity to be heard, and the Court should thus remand

36

for further proceedings consistent with the principles here

described.

Respectfully submitted,

Mark G. Yupor

F. Raymonp Marks

Rosert H,. MNooxin

Laurence H, Tripe

Childhood and Government Project

Earl Warren Legal Institute

The School of Law

University of California

Berkeley, CA 94720

Telephone: (415) 642-0910

Attorneys for Amicus Curiae*

Childhood and Government

Project

*We wish to acknowledge the assistance and colleagueship of

three research assistants, Vincent J. Cohen, Sandra E. Bressler,

and Abby Straus, law students.

\

ee

et at “

es mRNA hae