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Legal Due Process Requirements:
What the Courts Have Said
Over the years, suspensions have resulted in
many lawsuits. These lawsuits have revealed what
is going on in the public schools: the utter lack
of procedural regularity that permits even encourages,
easy and unjustified resort to the sanction of
suspension. But for years, the courts would not open
their eyes to these facts. Their vision was clouded
by a fog of legal doctrine that shrouded the decisions
of school administrators to throw out their students.
"To support their position, the administrators could
draw on a whole grab-bag of conceptualisms: that
attendance ... was a privilege rather than a right;
that ... [the school] stood in loco parentis to the
student; or that the vague rules ... that a student
could be dismissed whenever the institution thought
this advisable, constituted a contract that the student
had accepted."103
The power of the administrators was absolute, their
abuse of it unreviewable. Few questioned this legal
orthodoxy.
One who did, Professor Warren Seavey, wrote in
1957:
"[O]ur sense of justice should be outraged by denial
to students of the normal safeguards. It is
shocking that the officials of a state educational
institution, which can function properly only if our
freedoms are preserved, should not understand the
elementary principles of fair play. It is equally
shocking to find that a court supports them in
denying to a student the protection given to a
pickpocket."104
In J961, the United States Court of Appeals for
the Fifth Circuit held in Dixon v. Alabama State
Board of Education 105 that "due process requires
notice and some opportunity for hearing before a
student . . . is expelled for misconduct." The case
involved the expulsion of a student from a state college.
The court reasoned that a hearing was required
because "a charge of misconduct, as opposed to a
failure to meet the scholastic standards of the college,
depends upon a collection of the facts concerning
the charged misconduct, easily colored by
the point of view of the witnesses." It held that a
hearing must be held before the dismissal and that
it must involve "the rudiments of an adversary
proceeding."106
Slowly other courts generalized the Dixon holding.
It was applied to suspension from a state college,107
to expulsion hom a public high school,108 and
then to suspension from a public high school. 109
Then, in the early 1970s, the courts began to apply
Dixon to suspensions of varying severity. At
first, they required a prior hearing for a suspension
of 40 days,JlO and then for a suspension of 10
days, III but not for a suspension of five daysu2 or of
three days.u3 Yet they seemed to assume that some
kind of hearing should be held even in cases of the
shorter suspensions.'14
Next, the courts recognized that even a suspension
of a' few days could work substantial harm to a
child. IIi; One court required a formal, prior hearing
for a suspension of over two days.u 6 And another
observed that "a suspension of even one hour could
be quite critical to an individual student if that hour
encompassed a final examination that provided for
no 'make-up.' "tI7
Finally, in the last two years, the courts have
103 Charles Alan Wright, "The Constitution on Campus,"
Vallderbilt Law Review, Vol. 22, No.5, October 1969,
p. 1030.
194 Warren A. Seavey, "Dismissal of Students: 'Due Process',"
Harvard Law Review, Vol. 70, 1957, p. 1407.
105 DixOIl v. Alabama State Board at Education, 294 F.2d
150,158 (5th Cir. 1961) cert. dellied, 368 U.S. 930.
10" DixOIl V. A lobama SlOte Board at Educatioll, supra at
158-159.
107 See, for example, Esteban v. Celltral Missouri State College,
277 F.Supp. 649 (W.O.Mo. 1967).
108 See, for example, Vought v. Van Burell Public Schools,
306 F.Supp. 1388 (E.O.Mich. 1969).
109 See, for example, Williams v. Dade Counly School
Boord, 441 F.2d 299 (5th Cir. 1971).
110 Williams \'. Dade Coullty School Board, supra.
Hl Black StudelllS at North Fort Myers Jr.-Sr. High School
v. Williams, 470 F.2d 957 (5th Cir. 1972).
112 Jacksoll v. Hepillstall, 328 F.Supp. 1104, 1106 (N.D.N.Y.
t971) .
113 Tate v. Board of Education, 453 F.2d 975 (8th Cir.
1972).
114 See, for example, Banks v. Board at Public Instructioll,
314 F.Supp. 285, 292 (S.D.Fla. 1970).
U5 See, for example, Shallley v. Northeast Independellt
School District, 462 F.2d 960 (5th CiT. 1972).
U6 Mills v. Board at Educatioll, 348 F .Supp. 866, 878
(D.D.C. 1972).
117 Shanley v. Northeast Independent School District, sllpra
at 967 n. 4.
141