Monday, February 27, 2017
Meredith Simons' student note in the Duke Law Journal makes an excellent point that, on its face, should have been obvious to scholars and courts for some time: if due process applies when a school suspends or expels a student, it should also apply when a school asks an officer to arrest a student or give a student a citation. So much past scholarship has focused on whether the officer is subject to reasonable suspicion or probable cause standard that it has missed what was in front of our eyes the whole time: Goss v. Lopez's due process analysis. That Simons' went back to the basics and rethought the legal structure of student arrests and citations is a testament to fresh eyes and doing first things first.
Her abstract offers this summary:
There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.
This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.
Get the full article here.