Due Process Review

1
Due Process Review

• Due Process Clause of 14th Amendment
• Interpreted by the Supreme Court to have both
  procedural and substantive components.
• Procedural Due Process
• State has to use sufficiently fair and just legal
  procedures whenever it is going to lawfully take
  away a persons life, liberty or property.
• Substantive Due Process
• Guarantees that a persons life, liberty or
  property cannot be taken without appropriate
  governmental justification, regardless of the
  procedures used to do the taking.

2
Due Process Review

• Substantive Due Process
• Judicial Review
• Court balances government interest being served
  and method of implementation against infringement
  on individual rights.
• If govt action infringes on fundamental right -gt
  Strict Scrutiny
• Narrowly tailored to serve compelling state
  interest
• Fundamental Right e.g. marriage, procreation,
  sexual privacy
• If no infringement on a fundamental right -gt
  Rational Basis Test
• Rationally related to legitimate govt interest
• A law is more likely to survive constitutional
  challenges under rational basis test than under
  strict scrutiny.

3
Attendance

• Does child have constitutional right to attend
  public schools?
• When state provides public education, it must be
  open and available to all.
• Plyler v. Doe, page 292
• Undocumented children of alien parents can not be
  denied admission to public school
• Restriction fails rational basis test
• Martinez v. Bynum, page 296
• Residency requirement upheld
• Court rules against student because residency was
  for the primary purpose of attending the public
  free schools.

4
Compulsory Attendance

• Can a child be compelled to attend public
  schools?
• Parens Patriae
• Prince. V. Massachusetts (1944) pg.304
• Pierce v. Society of Sisters
• Not required to attend Public School
• Parent has right to direct the education of
  children
• Wisconsin v. Yoder - Amish Exception
• 1st Amendment Free Exercise Challenge
• need substantial burden on religious beliefs and
  practices (not inconvenience)
• Johnson v. Charles City pg. 316
• state cannot demonstrate a compelling interest to
  require continued schooling
• Health and Safety Exceptions
• Protection from grave risk of harm
• Burden of proof on parent to show sufficiently
  grave and school cant or wont protect

5
Compulsory Attendance

• PA School Code
• Title 24
• residents may attend public school in district
• resident where custodial parent/guardian resides
• can also attend licensed non-public, home school,
  private tutoring
• may attend before 8 yrs. old must attend until
  17
• Parents and child may be held responsible for
  noncompliance
• Parents must take reasonable steps to ensure
  attendance to avoid prosecution

6
Home Instruction

• 3 categories PA
• Private tutoring
• properly qualified tutor teaching
  certification
• regular daily instruction
• Home Schooling
• Instruction supervised by parent/guardian
• Maintain detailed portfolio demonstrating
  appropriate education
• Portfolio evaluated by teacher approved by
  superintendent
• Students must take standardized tests included
  as part of portfolio test not administered by
  parent.
• Homebound Instruction
• Temporary excusal for mental, physical or other
  urgent reason
• Home instruction by teacher
• Public school students only

7
Extracurricular Activities

• Extracurricular Activities
• Considered integral part of total school program
• Schools may establish reasonable rules to govern
  activities
• Participation is a privilege, not a right
• Courts give school officials great discretion in
  decisions related to extracurricular activities
• reasonable vs. abuse of discretion
• O.K. to exclude from activities as disciplinary
  sanction set grade criteria
• Can extend to off-campus activity (drinking)

8
Student Fees

• Randolph County v. Adams (1995) pg. 59
• Hartzell v. Connell (1984) pg. 62
• Case Studies

9
Transportation

• Transporting students not mandatory
• PA School Code
• If district decides to transport, must transport
  all residents, including private school students,
  within 10 miles of district
• Transfer status, time variance and exposure to
  older students can vary for private school
  students
• Transportation expands liability issues

10
Grooming and Dress Codes

• Personal Appearance
• 14th Amendment Challenges
• Circuits are split
• No Sup. Ct. case on point
• Kelley v. Johnson (U.S. Supreme Court)
• Non-School Case (Police)
• Appearance not as protected as marriage,
  procreation, family life (fundamental rights),
  but a
• Liberty interest not infringed without a
  rational basis in relation to a legitimate
  government interest
• Government has wide latitude to regulate such
  behavior
• Dress Codes
• 14th Amendment challenges
• 6th Circuit parent challenge right to control
  the dress of their children denied
• Reasonable regulations are generally upheld

11
Confidentiality

• Family Educational Rights and Privacy Act (FERPA)
• protects the privacy of student written education
  records.
• applies to all schools that receive funds under
  an applicable program of the U.S. Department of
  Education.

12
Confidentiality- FERPA

• FERPA
• What is written educational record?
• All documents (or the personally identifiable
  information contained therein) housed and
  maintained by the school directly related to a
  student
• Includes documents from outside agencies
• Once documents comes to rest in a school, it is
  an educational record
• Oswasso v. Falvo (2002) pg 722

13
Confidentiality-FERPA

• FERPA
• gives parents certain rights with respect to
  their children's education records.
• rights transfer to the student when
• he or she reaches the age of 18 or
• attends a school beyond the high school level.
• students to whom the rights have transferred are
  "eligible students."

14
Confidentiality-FERPA

• Parents or eligible students
• have right to inspect and review the student's
  education records maintained by the school.
• Schools are not required to provide copies of
  records
• Unless impossible for parents or eligible
  students to review the records (great distance).
• Schools may charge a fee for copies.

15
Confidentiality-FERPA

• Parents or eligible students
• Right to request that a school correct records
  which they believe to be inaccurate or
  misleading.
• If the school says no to changes
• then right to a formal hearing.
• After the hearing, if school still says no to
  changes
• right to place a statement with the record
  setting forth his or her view about the contested
  information

16
Confidentiality-FERPA

• Generally, schools must have written permission
  to release information in record
• FERPA allows schools to disclose records, without
  consent, to the following parties or under the
  following conditions
• School officials with legitimate educational
  interest
• Other schools to which a student is transferring
• Specified officials for audit or evaluation
  purposes
• Appropriate parties in connection with financial
  aid to a student
• Organizations conducting certain studies for or
  on behalf of the school
• Accrediting organizations
• To comply with a judicial order or lawfully
  issued subpoena
• Appropriate officials in cases of health and
  safety emergencies and
• State and local authorities, within a juvenile
  justice system, pursuant to specific State law.

17
Confidentiality-FERPA

• Schools may disclose, without consent,
  "directory" information
• i.e. student's name, address, telephone number,
  date and place of birth, honors and awards, and
  dates of attendance.
• Schools must tell parents and eligible students
  about directory information and allow them
  reasonable time to request that the school not
  disclose directory information
• Schools must notify parents and eligible students
  annually of their rights under FERPA.
• means of notification (special letter, inclusion
  in a PTA bulletin, student handbook, or newspaper
  article) is left to the discretion of each school.

18
Confidentiality-FERPA

• Areas of concern
• Failure to inform parents, guardians, or eligible
  students of their rights under the Act.
• Failure to provide an opportunity for parents,
  guardians, or eligible students to inspect and
  challenge the accuracy of information contained
  in the student's file.
• Confidential student files are viewed even though
  there is no legitimate educational interest
  involved.
• Careless talk or gossip.
• Confidential files are not properly secured and
  safeguarded.
• Records are not disposed of properly.

19
Confidentiality

• FERPA Violations
• Individuals do not have standing to sue schools
  for violations
• Complaint with Federal Department of Education

20
Course Content

• State laws mandate curriculum while local boards
  determine the methodology
• Determine course content based on district needs
• Must insure that parents have access to
  information about the curriculum and a process to
  review instructional material.
• Courts give local school boards broad discretion
  to oversee non-mandated curriculum
• Kitzmiller v. Dover Area School District
• Intelligent Design

21
Instructional Materials

• Textbooks
• PA School Code establishes procedures for
  textbook adoption
• Most challenges to textbooks are base on 1st
  Amendment religious grounds
• Library books
• Board of Education v. Pico

22
Withholding a Diploma

• Case Study