William & Mary Bill of Rights Journal
Abstract
Long-term suspensions and expulsions can be enormously consequential for students and their families. Not only do exclusionary disciplinary measures directly result in lost learning opportunities for children, but school discipline decisions can also result in significant collateral consequences. These consequences range from lower rates of graduation and higher rates of contact with the criminal justice system to disruptions in foster care placements, violations of juvenile probation, and even possible immigration consequences for undocumented students.
The Supreme Court has recognized the significance of suspensions and expulsions, requiring due process for such exclusionary discipline measures. But the Supreme Court has never explained what process is actually due for long-term suspensions and expulsions. Lower courts have been left to fill in the gaps and, in doing so, have generally shown enormous deference to school officials, upholding hearing procedures that amount to kangaroo courts. For example, courts have found that a student facing exclusionary discipline has no right to know the identity of her accusers, confront witnesses, or have notice of the specific charges against them.
This Article argues that courts analyzing student due process cases have misunderstood the interests at stake in exclusionary discipline, undervaluing a child’s interest in attending school and overestimating a school’s capacity or inclination to adjudicate school discipline issues fairly. Drawing on case law, research into the consequences of exclusionary school discipline, and case studies from the Education Advocacy Clinic at the University of Arizona, James E. Rogers College of Law, this Article illustrates the high stakes for students facing suspensions and expulsions— and how brittle the due process protections are. As the Article shows, courts are wary of supplanting a school’s judgment in school discipline matters, assuming schools will adjudicate discipline issues fairly so that additional process for students is not needed. But this assumption is wrong.
A comparison to special education law demonstrates that courts do have reason to be wary of a school’s decision-making in school discipline matters. Federal special education laws demonstrate a well-earned skepticism toward school officials and a concern that, without oversight, schools will exclude children they deem difficult to educate. In response, these laws establish detailed statutory requirements, numerous procedural safeguards, and regulatory oversight regarding the education of children with disabilities. This framework stands in stark contrast to the deference afforded school officials in the discipline context and shows that courts are naive to assume school officials will adjudicate discipline issues fairly without more due process protections.
This Article re-envisions what process should be due to students facing exclusionary discipline under existing Supreme Court precedent and provides specific recommendations for procedures that should be required by the courts. Due process— or even basic fairness—can feel far off for many students facing exclusionary discipline. This Article provides a path forward.