BASIC DUE PROCESS FOR PENNSYLVANIA STUDENTS

 

Copyright 1999 by Russell Dennis

 

The Role of the U.S. Constitution

The Tenth Amendment to the United States Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Since education is not mentioned in the Constitution, it is one of those powers reserved to the states. Of course, the United States Supreme Court can declare that something not mentioned in the Constitution is so closely related to something that is mentioned in the Constitution that the unmentioned power is a fundamental interest, which rises to constitutional protection. So far, the Supreme Court has not declared that education is a fundamental interest. Thus, states have plenary, or absolute, power in the area of education. However, the Constitution still has an effect upon due process issues concerning students.

Due process clause of the Fourteenth Amendment

The due process clause of the Fourteenth Amendment to the United States Constitution states"....nor shall any State deprive any person of life, liberty, or property, without due process of law...." The Pennsylvania Constitution gives plenary power over education to the General Assembly, which is the legislative branch of government. The General Assembly has created other bodies with which it has shared its power concerning education. Both the Pennsylvania State Board of Education and local school districts were created by the General Assembly. Therefore, school board members and school administrators act under the color of state law so whenever a liberty or property interest of a student is involved, the student must be given the basic due process rights guaranteed by the U.S. Constitution.

Liberty and property rights

Generally speaking, a student has a liberty right to a good reputation so any action that would stigmatize a student interferes with this liberty interest. The property right of a student is the expectation of an education, which is established by state law, so any action that would alter this expectation interferes with this property right. For example, if a student were be expelled both a liberty interest in terms of reputation and a property interest in terms of entitlement to schooling would be involved. The state can suspend or expel a student, but since both liberty and property interests are involved, the U.S. Constitution requires that the student be given due process before being suspended or expelled. The type of process, which is due, is determined by state law.

Substantive and procedural due process

There are two aspects of due process, which are referred to as substantive due process and procedural due process. Substantive due process basically refers to the reason or cause for the deprivation of the liberty or property right, while procedural due process refers to the procedures, which must be followed before the liberty or property right is deprived by the state. The three major components of procedural due process are notice, hearing and appeal. Although federal courts will require that a state provide due process before a liberty or property right is denied, the actual substantive and procedural due process rights generally are located in state sources rather than in federal sources. Pennsylvania sources of these rights are the Pennsylvania Public School Code, the Regulations of the Pennsylvania State Board of Education, school board rules and regulations, and case law. Sometimes, federal courts including the Supreme Court, have declared that due process rights provided by states have violated the U.S. Constitution. In these cases, the states have been required to revise the procedures.

In Loco Parentis doctrine

The authority of school personnel over students is established by Section 13-1317 of the Pennsylvania Public School Code:

Every teacher, vice principal and principal in the public schools shall have the right to exercise the same authority as to conduct and behavior over the pupils attending his school, during the time they are in attendance, including the time required in going to and from their homes, as the parents, guardians or persons in parental relation to such pupils may exercise over them.

This doctrine gives school officials the authority to establish rules and regulations governing student conduct and behavior, which could provide grounds for the deprivation of a liberty or property right. Section 13-1317 also gives the board the authority to expel students for violating rules governing behavior "going to and from their homes."

Two concepts affecting students' rights to an education

School age

The entitlement to an education, which establishes the property right for students in Pennsylvania, is established by the General Assembly in Section 13-1301 of the Public School Code and reinforced by the regulations of the Pennsylvania State Board of Education in Section 12.1(a) in volume 22 of the Pennsylvania Code. All students in Pennsylvania between the ages of 6 and 21 years who are residents of any school district are of "school age" and entitled to a public education..

Compulsory school age

"Compulsory school age" is defined in Section 13-1326 the Public School Code as "....the period of a child's life from the time the child's parents elect to have the child enter school, which shall not be later than the age of eight (8) years, until the age of seventeen (17) years. The term shall not include any child who holds a certificate of graduation from a regularly accredited senior high school." Reference to compulsory school age is also made in the regulations of the Pennsylvania State Board of Education in Section 12.1 (b) where it is also noted: "Students who have not graduated may not be asked to leave school merely because they have reached 17 years of age if they are fulfilling their responsibilities as students."

 School Age  Age 6 to 21, or graduation from high school.
 Compulsory School Age  Age 8 to 17, or graduation from high school.

 

School age establishes the entitlement to an education, which is the property right possessed by students in Pennsylvania so students between the ages of 6 and 21 who have not graduated from high school must be given due process before this right is deprived. If the student is of compulsory school age, provision must be made for an education even if the property right has been deprived through expulsion, as provided in the regulations of the Pennsylvania State Board of Education in Section 12.6 of 22 Pa Code.

Three factors affecting property rights and due process

There are three factors, which affect the property rights of students. First, the location of the student as a result of the deprivation must be considered. The student either will be in the school or out of the school as a consequence of the deprivation of the right. Second, the duration of the deprivation must be considered: is the deprivation for ten days or less or is it for more than ten days? Third, the nature of the student must be considered: is the student an "exceptional student" or a non-exceptional student.

 Location  IN-SCHOOL  OUT-OF-SCHOOL
 Duration of deprivation  10 DAYS OR LESS  MORE THAN 10 DAYS
 Student being deprived  NON-EXCEPTIONAL  EXCEPTIONAL

 

In-school and out-of-school

The student may remain within the school but be excluded from classes ( an in-school suspension) or the student may be excluded from the school ( either a suspension or an expulsion ). Exclusions from classes are covered by the regulations of the Pennsylvania State Board of Education in Section 12.7 of 22 Pa Code. Exclusions from school are covered by Section 13-1318 of the Pennsylvania Public School Code and Section 12.6 of the regulations of the State Board of Education in 22 Pa Code.

Suspension and expulsion (Duration)

The regulations of the Pennsylvania State Board of Education in Section 12.6 (b)(1) define "suspension" as "....exclusion from school for a period of from 1 to 10 consecutive school days." These regulations make a distinction between suspensions of 1 to 3 school days and suspensions exceeding 3 school days. Suspensions may be given by the principal. "Expulsion" is exclusion from school for more than 10 school days and may include permanent expulsion from the school rolls. Expulsion can only be given by the board of education.

Students

An "exceptional student", which is defined in Section 14.1 of the regulations of the Pennsylvania State Board of Education located in 22 Pa Code, is a student who has an IEP while a non-exceptional student is a student who does not have an IEP. In Pennsylvania, exceptional students are not only disabled students as covered by the Individuals With Disabilities Education Act (IDEA) but also "mentally gifted" students as defined in Section 342.1 of the regulations of the Pennsylvania State Board of Education located in 22 Pa Code. For exclusion of a student covered by IDEA, special rules apply, which are located in Section 14.35 of the regulations of the Pennsylvania State Board of Education located in 22 Pa Code.

Combination of two factors for non-exceptional students

In the following table the types of deprivation of property rights for a non-exceptional student are presented in descending order of severity, with permanent expulsion being most severe and l day suspension being the least severe.

 Permanent expulsion from the school rolls  Out-of-school
 Expulsion  Out-of-school

 Suspension exceeding 3 school days but not exceeding 10 school days

Suspension exceeding 10 consecutive school days

 In-school or out-of-school

 

In-school (It can be out-of-school if the suspension is preceding a formal hearing for an expulsion)

 Suspension less than 4 days  In-school or out-of-school

 

The above table lists the actions in regards to the property interest of the student. In general, the order would be the same regarding the liberty interest of the student in terms of reputation.

The combination of theses two factors determines the process which is due for each type of deprivation. Generally speaking, the greater the deprivation, the greater the process that is due. If a student is sent to the office by a teacher, this involves a property interest of the student but it is de minimus because the student is only missing a class. On the other hand, permanent expulsion from the school rolls involves a very great deprivation of both liberty and property interests. Basic information concerning due process issues regarding suspension and expulsion of a non-exceptional student is presented in the table below.

 ACTION  BY WHOM  DUE PROCESS
 Suspension less than 3 school days  Principal or person in charge of the school  Student must be informed of the reasons and given an opportunity to respond; parents and superintendent shall be notified immediately in writing
 Suspension exceeding 3 school days up to 10 days (or more than 10 days if pending expulsion)  Principal or person in charge of the school  Informal Hearing consistent with Sect. 12.8(c) of the regulations of the State Board of Education in 22 Pa Code

 Expulsion

Exclusion from school for more than 10 school days

May be permanent expulsion from the school rolls

 Board of school directors  Formal Hearing consistent with Sect. 12.8(b) of the regulations of the State Board of Education in 22 Pa Code. The hearing can be held before the entire board, an authorized committee of the board, or a hearing examiner appointed by the board, but a majority vote of the entire board is required to expel a student.

 

If the student who is expelled is less than 17 years of age, s/he is still subject to compulsory school attendance law and must be provided an education. A student over the age of 17 is not subject to compulsory attendance law if expelled. In general, the student is placed in his/her normal class during the period prior to the hearing and decision in an expulsion case. However, an informal hearing may be held to determine if the student's presence in the normal class "....would constitute a threat to the health, safety, morals or welfare of others..." in accordance with Section 12.6 of the regulations of the Pennsylvania State Board of Education located in 22 Pa Code. If such a threat is determined at this hearing, the student may be suspended prior to the formal hearing. If it is not possible to hold the formal expulsion hearing within the 10 day suspension period, the student may be excluded from school for more than 10 school days, but the school district must provide the student with alternative education.

Sources to be consulted for non-exceptional students

Various sources should be consulted for information concerning due process in regards to suspension and expulsion of non-exceptional students. The major sources, including a brief description of each, are presented below. The specific content of each source that is relevant to the issues of suspension and expulsion can be found in "Issues in Pennsylvania School Law."

 Pennsylvania Public School Code This contains the laws passed by the General Assembly, which is the legislative branch of government 
 Regulations of the Pennsylvania State Board of Education  The regulations of the State Board of Education are located in volume 22 of the Pennsylvania Code
 School board policies  Each of the 501 school districts in Pennsylvania has the authority under the School Code to adopt rules and regulations governing pupils. Each school district is also required to adopt a code of student conduct by the State Board of Education.
 Case law  Numerous cases have been decided by Pennsylvania courts concerning due process for students in the courts of common pleas, the Pennsylvania Commonwealth Court and Pennsylvania Supreme Court.

 

 

Using Issues in Pennsylvania School Law for student due process issues

Information concerning the due process requirements for suspension and expulsion is located in Issues in Pennsylvania School Law. In order to use this resource, click on "Issues Concerning Students" and then click on either "Exceptional Student ( Disabled)" or "Non-Exceptional Student (Non-Disabled)"

Information is arranged for suspension/expulsion concerning the sources, which have to be consulted. By clicking on each source, the content relevant to suspension/expulsion is presented. Only the content of that source that is relevant to that suspension/expulsion is presented. In addition, two other categories are listed under each issue. First, a basic source is referenced to suspension/expulsion; second, the appeals process is given for suspension/expulsion.

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