High School Students: Due Process
Teaching about Due Process of the Law
1. Can the government do that?
The scenario poses a range of takings and intrusions, from minor to extremely serious. The key point of the lesson is that the government can only deprive a person of life, liberty or property in accordance with due process of law. That begs the question, "What is due process of law?"
Distilled to its essence, due process requires notice and an opportunity to be heard. Stated another way, due process means that the government must indicate some justification or cause for its actions and must give attention to and take seriously the response or position of the person being affected. The starting point of due process analysis in each of the above situations, then, is to identify the government's authority or reasons for its actions.
In each of the instances in "Bill's Bad Day," the government or community has interests it seeks to enforce against the person. For instance, in the case of the school suspension, the school's interest is to maintain a learning environment. Goss v. Lopez, 419 U.S. 565 (1975). In the case of the death penalty, the government's interest is to punish and prevent serious crime.
2. What could happen to me?
The second step in the analysis is determine how much process is due in a given situation. The key concept is that due process is not a rigid set of identical rules for all situations, but flexible procedures varying with the situation. Basically, due process depends on an assessment of the balance between the degree of the loss a person could possibly suffer and the importance of the government's interest, including the cost or difficulty in providing the process. Mathews v. Eldridge, 424 U.S. 319 (1976). In the [scenario] instances, the possible loss ranges from missing a few days of school to losing one's life.
Teaching point: After examining the scenario's situations, the teacher or presenter can ask students to identify the government interests and their importance, then to identify the person's interest and its importance, and the degree of the possible loss.
3. What can I do about it?
The issues here are what procedures or safeguards are provided by the government in the way of justifications and opportunity to respond, and whether they are adequate. In general, this requires an assessment of the government's and person's interest, discussed above, and "risk of an erroneous deprivation of [a person's] interest...and the probable value, if any, of additional or substitute safeguards...." Mathews v. Eldridge, 424 U.S. 319, 321 (1976).
The possible procedures may include the following: right to a free or retained lawyer, a formal trial and rules of evidence, opportunity to call witness or to cross-examine, appeal, impartial jury, prompt hearing, public trial, burden of proof, transcript, written opinion or decision stating facts relied on, informal hearing, written notice of charge or pending government action, arraignment or presentment, bail, independent review of executive action by judiciary (e.g., search warrant), standard for intervention (e.g., reasonable suspicion, probable cause), statement of rights (e.g., at preliminary hearing and Miranda warnings) and specified procedures, including setting of mitigating and aggravating circumstances, a separate sentencing hearing, and an elaborate appeals process (death penalty). See 18 U.S.C.A. 3591-3595 for specific federal protections in federal death penalty cases.
Teaching point: Ask students to brainstorm or list the due process protections they are aware of. To prompt some ideas, ask them to read the 4th, 5th and 6th Amendments, recall a case they are familiar with, watch a video clip (e.g., a scene from Gideon's Trumpet or more recent film) or read an appropriate newspaper article. Once you have a list, have students work in pairs to classify the protections, e.g., as "essential, very important, not so important." Another approach would be to make a 6th Amendment "ladder," a paper with six lines or steps; ask them to put the most important on the top rung or step, the next most on the second rung, and so on.
The issue of what process is due for any particular situation is developed in the more specific student questions, which follow below:
4. Does a person have to talk with the police if they ask her questions?
The 5th Amendment provides that "no person... shall be compelled in any criminal case to be a witness against himself...." This basically means that a person doesn't have to talk with the police at any time in any situation that may implicate her in criminal activity. If a person reveals a criminal act to a third party, say a friend, that friend can be compelled to testify against the person, however. If the police have a suspect in custody, they must inform her of her constitutional rights to remain silent and to representation by a lawyer before they ask her any questions. Known as the Miranda warnings, this information is essential before an interrogation because the inherently coercive nature of police custody casts doubt on the voluntariness of a suspect's statement. Miranda v. Arizona, 384 U.S. 436 (1966).
In contact with law enforcement officers at earlier stages in an investigation or street encounters, a person need not respond to questions or make statements, although to facilitate law enforcement one may agree to do so. See U.S. v. Wylie, 186 U.S. App. D.C. 231, 236, 569 F.2d 62, 67 (1977), cert. denied, 435 U.S. 944 (1978). In Wylie, a police officer monitoring a bank noticed a customer acting unusually when trying to make a withdrawal. The police offer asked, "Sir, may I talk to you for a moment," and after becoming more suspicious, "Would you mind coming back inside the bank with me, and we will talk with the manager...." The court found that the conversation was not a "stop" but a "contact," and that Wylie would have been free to go if he did not answer the questions. When Bill is questioned at his doorstep by the IRS agent, in the example above, he is not required to answer questions. Miranda warnings are not required at that point, however, and any statement Bill makes can be used as evidence by the government.
Teaching point: Role play Bill's response to the police seeking to search the house and to the IRS agent wanting to question him about his taxes.
5. When can I have a lawyer? Do I have to pay for the lawyer?
In criminal cases, the right to counsel has come to mean that every defendant has a right to a lawyer to assist in her defense, and that a defendant who cannot afford lawyer will have one appointed for her. Gideon v. Wainright, 372 U.S. 335 (1963). In cases where no imprisonment is possible, such as traffic offenses, defendants may hire lawyers for their defense but they are normally not provided for free, on the theory that no loss of liberty is involved. In certain non-criminal cases where the loss may be severe, such as in charges of child abuse or neglect or termination of parental rights, many jurisdictions will appoint counsel for defendants who cannot afford them, as well as counsel to represent the children's interests. This is largely because adjudications of abuse and neglect could result in the child being removed from the home. See, e.g. 16 D.C. Code 2304 (b) (1) and (b) (3).
6. When can the police search a person's home or body?
While a full discussion of search and seizure law is beyond the scope of this lesson, some useful generalizations can be made in connection with due process. Essentially, the government must have greater degrees of justification for greater degrees of intrusion into one's liberty. For instance, the government needs a search warrant, based on probable cause and specifying what it to be searched and seized, approved by the judicial branch before conducting a search in a person's home or of his body, or anything in which he has an "reasonable expectation of privacy," Katz v. U. S., 389 U.S. 347 (1967), unless certain exceptions arise.
One set of exceptions has to do with the safety of the police when questioning or arresting a suspect. When the police have "reasonable, articulable suspicion" that a person may be committing a crime, they may stop and question the person, and may pat down or frisk the person's outer clothing for weapons. This is known as a stop and frisk, or Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968). Police may search a person incident to his arrest, or conduct a protective sweep of a house being searched, for safety reasons also. For related safety reasons, searches may be conducted at airports.
The second set of exceptions has to do with other justifications for suspending the warrant requirement, such as "hot pursuit" when pursuing a suspect into a house, "emergencies" such as responding to a fire or call for help, "consent" when the police are given permission to search, and "plain view" when the violation of the law is observed from where the police are entitled to be and where other persons could observe it. In these instances, there is diminished interest in privacy and little, if any, loss of liberty or property rights attributable to the search. Put another way, the intrusion is justifiable on grounds other than a search; the discovery of the illegality is incidental to the intrusion. In a sense, these discoveries are not "searches" at all.
7. When can the police search my car?
People have a high expectation of privacy in cars, as they do in their homes and in their persons. Because cars are mobile, however, police have greater necessity to secure and inspect a car that may be involved in a crime or investigation, so they often may search a car without a warrant and without probable cause. For instance, police may do an inventory of a car before they impound it. Marijuana discovered in the glove compartment during the inventory can be used as evidence. South Dakota v. Opperman, 428 U.S. 364 (1976). Police cannot go beyond the purpose of the inventory, though, to open a locked suitcase. Florida v. Wells, 495 U.S. 1 (1990).
During an arrest of a person in a car, other occupants and the accessible interior of the car may be searched for the safety and protection of the police, as a search incident to an arrest. Similarly, police can search the accessible interior of a car stopped for suspicious behavior and its occupants for protective reasons, as in a Terry stop. Going beyond this, however, would be a violation of the 4th Amendment.
Teaching point: To begin instruction on this point, ask students how they feel about privacy in their cars, compared to privacy in their homes. What difference does it make that cars are more mobile? What about the fact that the interior of a car and its occupants are plainly visible to someone standing outside?
8. Can the school search me or my locker?
The key to understanding due process rights and obligations regarding searches by school authorities lies in appreciation of the special circumstances of schooling and the relationship between students and school authorities. First, schools have special responsibilities re students. The purpose of schools is to educate students, and to this end schools are empowered to establish and enforce rules to support a learning environment. To a certain degree, schools act in the place of parents, so have an obligation for the safety and moral and educational development of students in their care. For these reasons, school authorities have a high interest in order and proper behavior. Moreover, elementary and secondary students are typically minors, and in any event are seen as having developing, but not fully developed, capabilities, interests, and rights. Also, students have lower expectations of privacy while on school property.
The leading case in this area is T.L.O. v. New Jersey, 469 U.S. 325 (1985), where the Supreme Court allowed a school principal to search a student's purse for prohibited cigarettes after the student was observed by a teacher to be smoking in a bathroom. The principal did not have "probable cause" to search the purse, the standard that would have been required outside the school. Inside the school to maintain school rules, however, the principal could search with a lesser degree of certainty that the student committed an offense, i.e., with "reasonable suspicion" under the circumstance. In the case of a search of a student's locker, a key consideration would be the student's expectation of privacy. For instance, were the students permitted to use their own locks, or did the school possess keys to open all lockers? Did the school publish a policy that lockers were not private student areas?
In a more recent case, the Supreme Court allowed school authorities to conduct random drug tests -- that is, searches without any cause whatsoever -- of student athletes. The Court justified its ruling on the notions that the students had diminished expectations of privacy in the school, the school had a strong interest in promoting proper behavior and preventing drug use, particularly of athletes, and that the tests were not very intrusive in students' privacy. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). A similar analysis should apply in the instance of metal detectors in schools or random locker searches.
9. What protections does due process require when the government tries to take away a benefit or other interest?
The protections required by due process depend on the balance of the factors set out in Mathews v. Eldridge, above. In cases of welfare, employment or social security benefits, in which the recipient is dependent upon the benefits for his/her livelihood, the protections required are substantial. For instance, in Goldberg v. Kelly, 397 U.S. 254 (1970), the statutory entitlement of welfare benefits was considered "property," and their withdrawal was protected by the opportunity of an administrative hearing, with adequate notice and the ability to present evidence and cross-examine adverse witnesses, before benefits were terminated. Similar protections are provided for other significant interests, such as a parent's relationship to her child.
For instance, the Prevention of Child Abuse and Neglect Act of the District of Columbia created a statutory structure that permits the government to remove children from families only when the children are endangered, and only then in conjunction with substantial procedural protections, such as prompt hearings and appointed counsel. For instance, the city can only remove a child from parental custody on an emergency basis when they have reasonable belief that the child is in "immediate danger" and removal is "necessary," and a hearing must be provided the next day to justify the continued removal "to protect the person of the child." To determine whether parents are committing child neglect, the government must conduct a formal hearing. A second hearing is required to determine what the government can do to remedy the situation; the government is required to provide appropriate services to the family, and can only remove the child as a last resort if the child can't otherwise be protected. See 16 D.C. Code 2301, et. seq. (1995).
In other situations where the deprivation of a constitutionally protected interest is less severe, protections are correspondingly less. In the case of a suspension from school for less than ten days, the school authorities only need to provide the student with notice of the charge and evidence against her, and to listen to the student's version of the story, before the suspension. See Goss v. Lopez, above.
10. How does this whole idea of due process work?
It would be great if students would ask this question. To help them grasp the notion of the flexible and relative nature of due process, they could participate in the making of a graph that shows due process protections as one axis and the situations requiring due process along the other axis. The basic concept of the chart is reproduced here. Students should see, after constructioning the chart, that due process is provided relative to the situation.
Teaching Point: The key to this part of the lesson is that the students should construct the graph or chart based on their understanding of the lesson. Thus, the chart serves both to evaluate what the students have learned and to instruct re the relative nature of due process. To have students construct the graph, first ask them to pin down the two extremes of the bottom axis, the deprivation / government interest axis. Ask: What is the most serious loss a person could suffer at the hands of the government? Answer: one's life, or the death penalty. What is the least serious government intrusion? There may be some debate on this, but many would say a simple contact is least (although highly intimidating for some), certainly when compared to other more intrusive interventions. Next, elicit the protections afforded with respect to the possible deprivations, and place them on the board. This should construct a chart something like this one.
>>Teaching about Due Process
>>Handout: Bill's Bad Day (Scenario)
>>Due Process Graph
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