MR. JUSTICE WHITE delivered the opinion of the Court.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.
Appellee Ohio public high school students, who had been suspended from school for misconduct for up to 10 days without a hearing, brought a class action against appellant school officials seeking a declaration that the Ohio statute permitting such suspensions was unconstitutional and an order enjoining the officials to remove the references to the suspensions from the students' records. A three-judge District Court declared that appellees were denied due process of law in violation of the Fourteenth Amendment because they were "suspended without hearing prior to suspension or within a reasonable time thereafter," and that the statute and implementing regulations were unconstitutional, and granted the requested injunction. Held:
1. Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment. Pp. 572-576.
(a) Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred, and must recognize a student's legitimate entitlement to a public education as a property interest that is protected by the Due Process Clause, and that may not be taken away for misconduct without observing minimum procedures required by that Clause. Pp. 573-574.
(b) Since misconduct charges if sustained and recorded could seriously damage the students' reputation as well as interfere with later educational and employment opportunities, the State's claimed right to determine unilaterally and without process whether that misconduct has occurred immediately collides with the Due Process Clause's prohibition against arbitrary deprivation of liberty. Pp. 574-575.
(c) A 10-day suspension from school is not de minimis and may not be imposed in complete disregard of the Due Process Clause. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. Pp. 575-576.
2. Due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version. Generally, notice and hearing should precede the student's removal from school, since the hearing may almost immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the student's presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable. Pp. 577-584.
MR. JUSTICE WHITE delivered the opinion of the Court.
This appeal by various administrators of the Columbus, Ohio, Public School
System (CPSS) challenges the judgment of a three-judge federal court, declaring
that appellees -- various high school students in the CPSS -- were denied due
process of law contrary to the command of the Fourteenth Amendment in that they
were temporarily suspended from their high schools without a hearing either
prior to suspension or within a reasonable time thereafter, and enjoining the
administrators to remove all references to such suspensions from the students'
Ohio law, Rev. Code Ann. § 3313.64 (1972), provides for free education to all
children between the ages of six and 21. Section 3313.66 of the Code empowers
the principal of an Ohio public school to suspend a pupil for misconduct for up
to 10 days or to expel him. In either case, he must notify the student's parents
within 24 hours and state the reasons for his action. A pupil who is expelled,
or his parents, may appeal the decision to the Board of Education and in
connection therewith shall be permitted to be heard at the board meeting. The
Board may reinstate the pupil following the hearing. No similar procedure is
provided in § 3313.66 or any other provision of state law for a suspended
student. Aside from a regulation tracking the statute, at the time of the
imposition of the suspensions in this case the CPSS itself had not issued any
written procedure applicable to suspensions. 1 Nor, so far as the record
reflects, had any of the individual high schools involved in this case. 2 Each,
however, had formally or informally described the conduct for which suspension
could be imposed.
The nine named appellees, each of whom alleged that he or she had been
suspended from public high school in Columbus for up to 10 days without a
hearing pursuant to § 3313.66, filed an action under 42 U. S. C. § 1983 against
the Columbus Board of Education and various administrators of the CPSS. The
complaint sought a declaration that § 3313.66 was unconstitutional in that it
permitted public school administrators to deprive plaintiffs of their rights to
an education without a hearing of any kind, in violation of the procedural due
process component of the Fourteenth Amendment. It also sought to enjoin the
public school officials from issuing future suspensions pursuant to § 3313.66
and to require them to remove references to the past suspensions from the
records of the students in question. 3
The proof below established that the suspensions arose out of a period of
widespread student unrest in the CPSS during February and March 1971. Six of the
named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox,
Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High
School and were each suspended for 10 days 4 on account of disruptive or
disobedient conduct committed in the presence of the school administrator who
ordered the suspension. One of these, Tyrone Washington, was among a group of
students demonstrating in the school auditorium while a class was being
conducted there. He was ordered by the school principal to leave, refused to do
so, and was suspended. Rudolph Sutton, in the presence of the principal,
physically attacked a police officer who was attempting to remove Tyrone
Washington from the auditorium. He was immediately suspended. The other four
Marion-Franklin students were suspended for similar conduct. None was given a
hearing to determine the operative facts underlying the suspension, but each,
together with his or her parents, was offered the opportunity to attend a
conference, subsequent to the effective date of the suspension, to discuss the
Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the
Central High School and McGuffey Junior High School, respectively. The former
was suspended in connection with a disturbance in the lunchroom which involved
some physical damage to school property. 5 Lopez testified that at
least 75 other students were suspended from his school on the same day. He also
testified below that he was not a party to the destructive conduct but was
instead an innocent bystander. Because no one from the school testified with
regard to this incident, there is no evidence in the record indicating the
official basis for concluding otherwise. Lopez never had a hearing.
Betty Crome was present at a demonstration at a high school other than the
one she was attending. There she was arrested together with others, taken to the
police station, and released without being formally charged. Before she went to
school on the following day, she was notified that she had been suspended for a
10-day period. Because no one from the school testified with respect to this
incident, the record does not disclose how the McGuffey Junior High School
principal went about making the decision to suspend Crome, nor does it disclose
on what information the decision was based. It is clear from the record that no
hearing was ever held.
There was no testimony with respect to the suspension of the ninth named
plaintiff, Carl Smith. The school files were also silent as to his suspension,
although as to some, but not all, of the other named plaintiffs the files
contained either direct references to their suspensions or copies of letters
sent to their parents advising them of the suspension.
On the basis of this evidence, the three-judge court declared that plaintiffs
were denied due process of law because they were "suspended without hearing
prior to suspension or within a reasonable time thereafter," and that Ohio Rev.
Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were
unconstitutional in permitting such suspensions. 6 It was ordered that all
references to plaintiffs' suspensions be removed from school files.
Although not imposing upon the Ohio school administrators any particular
disciplinary procedures and leaving them "free to adopt regulations providing
for fair suspension procedures which are consonant with the educational goals of
their schools and reflective of the characteristics of their school and
locality," the District Court declared that there were "minimum requirements of
notice and a hearing prior to suspension, except in emergency situations." In
explication, the court stated that relevant case authority would: (1) permit
"[immediate] removal of a student whose conduct disrupts the academic atmosphere
of the school, endangers fellow students, teachers or school officials, or
damages property"; (2) require notice of suspension proceedings to be sent to
the student's parents within 24 hours of the decision to conduct them; and (3)
require a hearing to be held, with the student present, within 72 hours of his
removal. Finally, the court stated that, with respect to the nature of the
hearing, the relevant cases required that statements in support of the charge be
produced, that the student and others be permitted to make statements in defense
or mitigation, and that the school need not permit attendance by counsel.
The defendant school administrators have appealed the three-judge court's
decision. Because the order below granted plaintiffs' request for an injunction
-- ordering defendants to expunge their records -- this Court has jurisdiction
of the appeal pursuant to 28 U. S. C. § 1253. We affirm.
At the outset, appellants contend that because there is no constitutional
right to an education at public expense, the Due Process Clause does not protect
against expulsions from the public school system. This position misconceives the
nature of the issue and is refuted by prior decisions. The Fourteenth Amendment
forbids the State to deprive any person of life, liberty, or property without
due process of law. Protected interests in property are normally "not created by
the Constitution. Rather, they are created and their dimensions are defined" by
an independent source such as state statutes or rules entitling the citizen to
certain benefits. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
Accordingly, a state employee who under state law, or rules promulgated by
state officials, has a legitimate claim of entitlement to continued employment
absent sufficient cause for discharge may demand the procedural protections of
due process. Connell v. Higginbotham, 403 U.S. 207 (1971); Wieman v. Updegraff,
344 U.S. 183, 191-192 (1952); Arnett v. Kennedy, 416 U.S. 134, 164 (POWELL, J.,
concurring), 171 (WHITE, J., concurring and dissenting) (1974). So many welfare
recipients who have statutory rights to welfare as long as they maintain the
specified qualifications. Goldberg v. Kelly, 397 U.S. 254 (1970). Morrissey v.
Brewer, 408 U.S. 471 (1972), applied the limitations of the Due Process Clause
to governmental decisions to revoke parole, although a parolee has no
constitutional right to that status. In like vein was Wolff v. McDonnell, 418
U.S. 539 (1974), where the procedural protections of the Due Process Clause were
triggered by official cancellation of a prisoner's good-time credits accumulated
under state law, although those benefits were not mandated by the Constitution.
Here, on the basis of state law, appellees plainly had legitimate claims of
entitlement to a public education. Ohio Rev. Code Ann. §§ 3313.48 and 3313.64
(1972 and Supp. 1973) direct local authorities to provide a free education to
all residents between five and 21 years of age, and a compulsory-attendance law
requires attendance for a school year of not less than 32 weeks.
Ohio Rev. Code Ann. § 3321.04 (1972). It is true that § 3313.66 of the Code
permits school principals to suspend students for up to 10 days; but suspensions
may not be imposed without any grounds whatsoever. All of the schools had their
own rules specifying the grounds for expulsion or suspension. Having chosen to
extend the right to an education to people of appellees' class generally, Ohio
may not withdraw that right on grounds of misconduct, absent fundamentally fair
procedures to determine whether the misconduct has occurred. Arnett v. Kennedy,
supra, at 164 (POWELL, J., concurring), 171 (WHITE, J., concurring and
dissenting), 206 (MARSHALL, J., dissenting).
Although Ohio may not be constitutionally obligated to establish and maintain
a public school system, it has nevertheless done so and has required its
children to attend. Those young people do not "shed their constitutional rights"
at the schoolhouse door. Tinker v. Des Moines School Dist., 393 U.S. 503, 506
(1969). "The Fourteenth Amendment, as now applied to the States, protects the
citizen against the State itself and all of its creatures -- Boards of Education
not excepted." West Virginia Board of Education v. Barnette, 319 U.S. 624, 637
(1943). The authority possessed by the State to prescribe and enforce standards
of conduct in its schools although concededly very broad, must be exercised
consistently with constitutional safeguards. Among other things, the State is
constrained to recognize a student's legitimate entitlement to a public
education as a property interest which is protected by the Due Process Clause
and which may not be taken away for misconduct without adherence to the minimum
procedures required by that Clause.
The Due Process Clause also forbids arbitrary deprivations of liberty. "Where
a person's good name, reputation, honor, or integrity is at stake because of
what the government is doing to him," the minimal requirements of the Clause
must be satisfied. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Board
of Regents v. Roth, supra, at 573. School authorities here suspended appellees
from school for periods of up to 10 days based on charges of misconduct. If
sustained and recorded, those charges could seriously damage the students'
standing with their fellow pupils and their teachers as well as interfere with
later opportunities for higher education and employment. 7 It is apparent that the
claimed right of the State to determine unilaterally and without process whether
that misconduct has occurred immediately collides with the requirements of the
Appellants proceed to argue that even if there is a right to a public
education protected by the Due Process Clause generally, the Clause comes into
play only when the State subjects a student to a "severe detriment or grievous
loss." The loss of 10 days, it is said, is neither severe nor grievous and the
Due Process Clause is therefore of no relevance. Appellants' argument is again
refuted by our prior decisions; for in determining "whether due process
requirements apply in the first place, we must look not to the 'weight' but to
the nature of the interest at stake." Board of Regents v. Roth, supra, at
570-571. Appellees were excluded from school only temporarily, it is true, but
the length and consequent severity of a deprivation, while another factor to
weigh in determining the appropriate form of hearing, "is not decisive of the
basic right" to a hearing of some kind. Fuentes v. Shevin, 407 U.S. 67, 86
(1972). The Court's view has been that as long as a property deprivation is not
de minimis, its gravity is irrelevant to the question whether account must be
taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U.S. 337,
342 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U.S. 371,
378-379 (1971); Board of Regents v. Roth, supra, at 570 n. 8. A 10-day
suspension from school is not de minimis in our view and may not be imposed in
complete disregard of the Due Process Clause.
A short suspension is, of course, a far milder deprivation than expulsion.
But, "education is perhaps the most important function of state and local
governments," Brown v. Board of Education, 347 U.S. 483, 493 (1954), and the
total exclusion from the educational process for more than a trivial period, and
certainly if the suspension is for 10 days, is a serious event in the life of
the suspended child. Neither the property interest in educational benefits
temporarily denied nor the liberty interest in reputation, which is also
implicated, is so insubstantial that suspensions may constitutionally be imposed
by any procedure the school chooses, no matter how arbitrary. 8
"Once it is determined that due process applies, the question remains what
process is due." Morrissey v. Brewer, 408 U.S., at 481. We turn to that
question, fully realizing as our cases regularly do that the interpretation and
application of the Due Process Clause are intensely practical matters and that
"[the] very nature of due process negates any concept of inflexible procedures
universally applicable to every imaginable situation." Cafeteria Workers v.
McElroy, 367 U.S. 886, 895 (1961). We are also mindful of our own admonition:
"Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities." Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
There are certain bench marks to guide us, however. Mullane v. Central
Hanover Trust Co., 339 U.S. 306 (1950), a case often invoked by later opinions,
said that "[many] controversies have raged about the cryptic and abstract words
of the Due Process Clause but there can be no doubt that at a minimum they
require that deprivation of life, liberty or property by adjudication be
preceded by notice and opportunity for hearing appropriate to the nature of the
case." Id., at 313. "The fundamental requisite of due process of law is the
opportunity to be heard," Grannis v. Ordean, 234 U.S. 385, 394 (1914), a right
that "has little reality or worth unless one is informed that the matter is
pending and can choose for himself whether to . . . contest." Mullane v. Central
Hanover Trust Co., supra, at 314. See also Armstrong v. Manzo, 380 U.S. 545, 550
(1965); Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168-169 (1951)
(Frankfurter, J., concurring). At the very minimum, therefore, students facing
suspension and the consequent interference with a protected property interest
must be given some kind of notice and afforded some kind of hearing. "Parties
whose rights are to be affected are entitled to be heard; and in order that they
may enjoy that right they must first be notified." Baldwin v. Hale, 1 Wall. 223,
It also appears from our cases that the timing and content of the notice and
the nature of the hearing will depend on appropriate accommodation of the
competing interests involved. Cafeteria Workers v. McElroy, supra, at 895;
Morrissey v. Brewer, supra, at 481. The student's interest is to avoid unfair or
mistaken exclusion from the educational process, with all of its unfortunate
consequences. The Due Process Clause will not shield him from suspensions
properly imposed, but it disserves both his interest and the interest of the
State if his suspension is in fact unwarranted. The concern would be mostly
academic if the disciplinary process were a totally accurate, unerring process,
never mistaken and never unfair. Unfortunately, that is not the case, and no one
suggests that it is. Disciplinarians, although proceeding in utmost good faith,
frequently act on the reports and advice of others; and the controlling facts
and the nature of the conduct under challenge are often disputed. The risk of
error is not at all trivial, and it should be guarded against if that may be
done without prohibitive cost or interference with the educational process.
The difficulty is that our schools are vast and complex. Some modicum of
discipline and order is essential if the educational function is to be
performed. Events calling for discipline are frequent occurrences and sometimes
require immediate, effective action. Suspension is considered not only to be a
necessary tool to maintain order but a valuable educational device. The prospect
of imposing elaborate hearing requirements in every suspension case is viewed
with great concern, and many school authorities may well prefer the untrammeled
power to act unilaterally, unhampered by rules about notice and hearing. But it
would be a strange disciplinary system in an educational institution if no
communication was sought by the disciplinarian with the student in an effort to
inform him of his dereliction and to let him tell his side of the story in order
to make sure that an injustice is not done. "[Fairness] can rarely be obtained
by secret, one-sided determination of facts decisive of rights. . . ." "Secrecy
is not congenial to truth-seeking and self-righteousness gives too slender an
assurance of rightness. No better instrument has been devised for arriving at
truth than to give a person in jeopardy of serious loss notice of the case
against him and opportunity to meet it." Anti-Fascist Committee v. McGrath,
supra, at 170, 171-172 (Frankfurter, J., concurring). 9
We do not believe that school authoritiesmust be totally free from notice and
hearing requirements if their schools are to operate with acceptable efficiency.
Students facing temporary suspension have interests qualifying for protection of
the Due Process Clause, and due process requires, in connection with a
suspension of 10 days or less, that the student be given oral or written notice
of the charges against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present his side of the
story. The Clause requires at least these rudimentary precautions against unfair
or mistaken findings of misconduct and arbitrary exclusion from school. 10
There need be no delay between the time "notice" is given and the time of the
hearing. In the great majority of cases the disciplinarian may informally
discuss the alleged misconduct with the student minutes after it has occurred.
We hold only that, in being given an opportunity to explain his version of the
facts at this discussion, the student first be told what he is accused of doing
and what the basis of the accusation is. Lower courts which have addressed the
question of the nature of the procedures required in short suspension cases have
reached the same conclusion. Tate v. Board of Education, 453 F.2d 975, 979 (CA8
1972); Vail v. Board of Education, 354 F.Supp. 592, 603 (NH 1973). Since the
hearing may occur almost immediately following the misconduct, it follows that
as a general rule notice and hearing should precede removal of the student from
school. We agree with the District Court, however, that there are recurring
situations in which prior notice and hearing cannot be insisted upon. Students
whose presence poses a continuing danger to persons or property or an ongoing
threat of disrupting the academic process may be immediately removed from
school. In such cases, the necessary notice and rudimentary hearing should
follow as soon as practicable, as the District Court indicated.
In holding as we do, we do not believe that we have imposed procedures on
school disciplinarians which are inappropriate in a classroom setting. Instead
we have imposed requirements which are, if anything, less than a fair-minded
school principal would impose upon himself in order to avoid unfair suspensions.
Indeed, according to the testimony of the principal of Marion-Franklin High
School, that school had an informal procedure, remarkably similar to that which
we now require, applicable to suspensions generally but which was not followed
in this case. Similarly, according to the most recent memorandum applicable to
the entire CPSS, see n. 1, supra, school principals in the CPSS are now required
by local rule to provide at least as much as the constitutional minimum which we
We stop short of construing the Due Process Clause to require, countrywide,
that hearings in connection with short suspensions must afford the student the
opportunity to secure counsel, to confront and cross-examine witnesses
supporting the charge, or to call his own witnesses to verify his version of the
incident. Brief disciplinary suspensions are almost countless. To impose in each
such case even truncated trial-type procedures might well overwhelm
administrative facilities in many places and, by diverting resources, cost more
than it would save in educational effectiveness. Moreover, further formalizing
the suspension process and escalating its formality and adversary nature may not
only make it too costly as a regular disciplinary tool but also destroy its
effectiveness as part of the teaching process.
On the other hand, requiring effective notice and informal hearing permitting
the student to give his version of the events will provide a meaningful hedge
against erroneous action. At least the disciplinarian will be alerted to the
existence of disputes about facts and arguments about cause and effect. He may
then determine himself to summon the accuser, permit cross-examination, and
allow the student to present his own witnesses. In more difficult cases, he may
permit counsel. In any event, his discretion will be more informed and we think
the risk of error substantially reduced.
Requiring that there be at least an informal give-and-take between student
and disciplinarian, preferably prior to the suspension, will add little to the
factfinding function where the disciplinarian himself has witnessed the conduct
forming the basis for the charge. But things are not always as they seem to be,
and the student will at least have the opportunity to characterize his conduct
and put it in what he deems the proper context.
We should also make it clear that we have addressed ourselves solely to the
short suspension, not exceeding 10 days. Longer suspensions or expulsions for
the remainder of the school term, or permanently, may require more formal
procedures. Nor do we put aside the possibility that in unusual situations,
although involving only a short suspension, something more than the rudimentary
procedures will be required.
The District Court found each of the suspensions involved here to have
occurred without a hearing, either before or after the suspension, and that each
suspension was therefore invalid and the statute unconstitutional insofar as it
permits such suspensions without notice or hearing. Accordingly, the judgment is
---- Begin EndNotes ----
1 At the
time of the events involved in this case, the only administrative regulation on
this subject was § 1010.04 of the Administrative Guide of the Columbus Public
Schools which provided: "Pupils may be suspended or expelled from school in
accordance with the provisions of Section 3313.66 of the Revised Code."
Subsequent to the events involved in this lawsuit, the Department of Pupil
Personnel of the CPSS issued three memoranda relating to suspension procedures,
dated August 16, 1971, February 21, 1973, and July 10, 1973, respectively. The
first two are substantially similar to each other and require no factfinding
hearing at any time in connection with a suspension. The third, which was
apparently in effect when this case was argued, places upon the principal the
obligation to "investigate" "before commencing suspension procedures"; and
provides as part of the procedures that the principal shall discuss the case
with the pupil, so that the pupil may "be heard with respect to the alleged
offense," unless the pupil is "unavailable" for such a discussion or "unwilling"
to participate in it. The suspensions involved in this case occurred, and
records thereof were made, prior to the effective date of these memoranda. The
District Court's judgment, including its expunction order, turns on the
propriety of the procedures existing at the time the suspensions were ordered
and by which they were imposed.
According to the testimony of Phillip Fulton, the principal of one of the high
schools involved in this case, there was an informal procedure applicable at th 2281 and convened. The students also
alleged that the conduct for which they could be suspended was not adequately
defined by Ohio law. This vagueness and overbreadth argument was rejected by the
court below and the students have not appealed from this part of the court's
was given two separate 10-day suspensions for misconduct occurring on two
separate occasions -- the second following immediately upon her return to
school. In addition to his suspension, Sutton was transferred to another school.
was actually absent from school, following his suspension, for over 20 days.
This seems to have occurred because of a misunderstanding as to the length of
the suspension. A letter sent to Lopez after he had been out for over 10 days
purports to assume that, being over compulsory school age, he was voluntarily
staying away. Upon asserting that this was not the case, Lopez was transferred
to another school.
6 In its
judgment, the court stated that the statute is unconstitutional in that it
provides "for suspension . . . without first affording the student due process
of law." (Emphasis supplied.) However, the language of the judgment must be read
in light of the language in the opinion which expressly contemplates that under
some circumstances students may properly be removed from school before a hearing
is held, so long as the hearing follows promptly.
Appellees assert in their brief that four of 12 randomly selected Ohio colleges
specifically inquire of the high school of every applicant for admission whether
the applicant has ever been suspended. Brief for Appellees 34-35 and n. 40.
Appellees also contend that many employers request similar information. Ibid.
Congress has recently enacted legislation limiting access to information
contained in the files of a school receiving federal funds. Section 513 of the
Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 571, 20 U. S. C. § 1232g
(1970 ed., Supp. IV), adding § 438 to the General Education Provisions Act. That
section would preclude release of "verified reports of serious or recurrent
behavior patterns" to employers without written consent of the student's
parents. While subsection (b)(1)(B) permits release of such information to
"other schools . . . in which the student intends to enroll," it does so only
upon condition that the parent be advised of the release of the information and
be given an opportunity at a hearing to challenge the content of the information
to insure against inclusion of inaccurate or misleading information. The statute
does not expressly state whether the parent can contest the underlying basis for
a suspension, the fact of which is contained in the student's school record.
the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v.
Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930
(1961), the lower federal courts have uniformly held the Due Process Clause
applicable to decisions made by tax-supported educational institutions to remove
a student from the institution long enough for the removal to be classified as
an expulsion. Hagopian v. Knowlton, 470 F.2d 201, 211 (CA2 1972); Wasson v.
Trowbridge, 382 F.2d 807, 812 (CA2 1967); Esteban v. Central Missouri State
College, 415 F.2d 1077, 1089 (CA8 1969), cert. denied, 398 U.S. 965 (1970);
Vought v. Van Buren Public Schools, 306 F.Supp. 1388 (ED Mich. 1969); Whitfield
v. Simpson, 312 F.Supp. 889 (ED Ill. 1970); Fielder v. Board of Education of
School District of Winnebago, Neb., 346 F.Supp. 722, 729 (Neb. 1972); DeJesus v.
Penberthy, 344 F.Supp. 70, 74 (Conn. 1972); Soglin v. Kauffman, 295 F.Supp. 978,
994 (WD Wis. 1968), aff'd, 418 F.2d 163 (CA7 1969); Stricklin v. Regents of
University of Wisconsin, 297 F.Supp. 416, 420 (WD Wis. 1969), appeal dismissed,
420 F.2d 1257 (CA7 1970); Buck v. Carter, 308 F.Supp. 1246 (WD Wis. 1970);
General Order on Judicial Standards of Procedure and Substance in Review of
Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D.
133, 147-148 (WD Mo. 1968) (en banc). The lower courts have been less uniform,
however, on the question whether removal from school for some shorter period may
ever be so trivial a deprivation as to require no process, and, if so, how short
the removal must be to qualify. Courts of Appeals have held or assumed the Due
Process Clause applicable to long suspensions, Pervis v. LaMarque Ind. School
Dist., 466 F.2d 1054 (CA5 1972); to indefinite suspensions, Sullivan v. Houston
Ind. School Dist., 475 F.2d 1071 (CA5), cert. denied, 414 U.S. 1032 (1973); to
the addition of a 30-day suspension to a 10-day suspension, Williams v. Dade
County School Board, 441 F.2d 299 (CA5 1971); to a 10-day suspension, Black
Students of North Fort Myers Jr.-Sr. High School v. Williams, 470 F.2d 957 (CA5
1972); to "mild" suspensions, Farrell v. Joel, 437 F.2d 160 (CA2 1971), and Tate
v. Board of Education, 453 F.2d 975 (CA8 1972); and to a three-day suspension,
Shanley v. Northeast Ind. School Dist., Bexar County, Texas, 462 F.2d 960, 967
n. 4 (CA5 1972); but inapplicable to a seven-day suspension, Linwood v. Board of
Ed. of City of Peoria, 463 F.2d 763 (CA7), cert. denied, 409 U.S. 1027 (1972);
to a three-day suspension, Dunn v. Tyler Ind. School Dist., 460 F.2d 137 (CA5
1972); to a suspension for not "more than a few days," Murray v. West Baton
Rouge Parish School Board, 472 F.2d 438 (CA5 1973); and to all suspensions no
matter how short, Black Coalition v. Portland School District No. 1, 484 F.2d
1040 (CA9 1973). The Federal District Courts have held the Due Process Clause
applicable to an interim suspension pending expulsion proceedings in Stricklin
v. Regents of University of Wisconsin, supra, and Buck v. Carter, supra; to a
10-day suspension, Banks v. Board of Public Instruction of Dade County, 314
F.Supp. 285 (SD Fla. 1970), vacated, 401 U.S. 988 (1971) (for entry of a fresh
decree so that a timely appeal might be taken to the Court of Appeals), aff'd,
450 F.2d 1103 (CA5 1971); to suspensions of under five days, Vail v. Board of
Education of Portsmouth School Dist., 354 F.Supp. 592 (NH 1973); and to all
suspensions, Mills v. Board of Education of the Dist. of Columbia, 348 F.Supp.
866 (DC 1972), and Givens v. Poe, 346 F.Supp. 202 (WDNC 1972); but inapplicable
to suspensions of 25 days, Hernandez v. School District Number One, Denver,
Colorado, 315 F.Supp. 289 (Colo. 1970); to suspensions of 10 days, Baker v.
Downey City Board of Education, 307 F.Supp. 517 (CD Cal. 1969); and to
suspensions of eight days, Hatter v. Los Angeles City High School District, 310
F.Supp. 1309 (CD Cal. 1970), rev'd on other grounds, 452 F.2d 673 (CA9 1971). In
the cases holding no process necessary in connection with short suspensions, it
is not always clear whether the court viewed the Due Process Clause as
inapplicable, or simply felt that the process received was "due" even in the
absence of some kind of hearing procedure.
facts involved in this case illustrate the point. Betty Crome was suspended for
conduct which did not occur on school grounds, and for which mass arrests were
made -- hardly guaranteeing careful individualized factfinding by the police or
by the school principal. She claims to have been involved in no misconduct.
However, she was suspended for 10 days without ever being told what she was
accused of doing or being given an opportunity to explain her presence among
those arrested. Similarly, Dwight Lopez was suspended, along with many others,
in connection with a disturbance in the lunchroom. Lopez says he was not one of
those in the lunchroom who was involved. However, he was never told the basis
for the principal's belief that he was involved, nor was he ever given an
opportunity to explain his presence in the lunchroom. The school principals who
suspended Crome and Lopez may have been correct on the merits, but it is
inconsistent with the Due Process Clause to have made the decision that
misconduct had occurred without at some meaningful time giving Crome or Lopez an
opportunity to persuade the principals otherwise.
We recognize that both suspensions were imposed during a time of great
difficulty for the school administrations involved. At least in Lopez' case
there may have been an immediate need to send home everyone in the lunchroom in
order to preserve school order and property; and the administrative burden of
providing 75 "hearings" of any kind is considerable. However, neither factor
justifies a disciplinary suspension without at any time gathering facts relating
to Lopez specifically, confronting him with them, and giving him an opportunity
Appellants point to the fact that some process is provided under Ohio law by way
of judicial review. Ohio Rev. Code Ann. § 2506.01 (Supp. 1973). Appellants do
not cite any case in which this general administrative review statute has been
used to appeal from a disciplinary decision by a school official. If it be
assumed that it could be so used, it is for two reasons insufficient to save
inadequate procedures at the school level. First, although new proof may be
offered in a § 2501.06 proceeding, Shaker Coventry Corp. v. Shaker Heights
Planning Comm'n, 18 Ohio Op. 2d 272, 176 N. E. 2d 332 (1961), the proceeding is
not de novo. In re Locke, 33 Ohio App. 2d 177, 294 N. E. 2d 230 (1972). Thus the
decision by the school -- even if made upon inadequate procedures -- is entitled
to weight in the court proceeding. Second, without a demonstration to the
contrary, we must assume that delay will attend any § 2501.06 proceeding, that
the suspension will not be stayed pending hearing, and that the student
meanwhile will irreparably lose his educational benefits.