“Give me due process or give me . . . ?”

grade f

The Fall 2009 issue of Education Next contains a fascinating summary of a study of the trends in appellate and Supreme Court decisions involving student due process rights.  The summary contains a lot of interesting information and is well worth reading.  For me, the most thought-provoking part of the study is the finding that there is quite a bit of disparity between student and teacher perception of student rights and the reality of court decisions.

The two authors of the study, Richard Arum and Doreet Preiss, showed that a significant percentage of students have erroneously assumed that students in fact have “formal due process protections not only for major disciplinary actions but for minor day-to-day disciplines.”  The examples for “minor disciplines” include lowering a student’s grades for disciplinary reasons, suspension from extracurricular activities, or in-school suspension.  Interestingly, about the same percentage of educators surveyed believe the same.  Indeed, half of the public school teachers surveyed responded that lowering a student’s grade for disciplinary reasons was prohibited.

As Arum and Preiss noted, these beliefs are by and large false.  Courts have simply not extended those types of due process protection to students for such “minor” disciplinary actions.

What to make of this disparity?  The obvious one is that these students (and educators) are simply wrong and should be educated to bring their understanding in line with the existing state of the law.  Another perspective, however, is that the courts are out of touch with a significant section of the public (though, to be fair, not the majority of the public.  The study puts the percentage of students and educator who hold the erroneous beliefs to be between 32 to 36%.), and ought to recognize  and protect student rights more expansively.

But there is also a third possibility.  Perhaps courts are in fact reaching an optimal decision, recognizing that enforcing a more expansive notion of students rights through legal means is undesirable and unworkable, and that the status quo, where school administrators are left to their sound discretion regarding minor disciplinary matters, is preferable, with the caveat that such discretion, in reality, is already tampered with a belief that students deserve certain due process protections. Such public mores and sentiments may make it unnecessary, absent really flagrant infractions, for courts to aggressively define and enforce rights in certain areas.

Or, perhaps it is the other way around.  Courts are not so wise as I have painted in the picture above.  They are simply, for whatever reason, behind the times and stubbornly refusing to acknowledge the rights that many think are due.  But all is not lost.  Where courts are unwilling to recognize rights, and where the public actually believes that certain rights should be protected, the gap left by the court will simply be filled by social mores and the “court of public opinion.”  These rights, of course, are legally supererogatory and essentially unenforceable in court, but if the disciplinarians themselves believe that certain forms of disciplines are not allowed (when in fact they are), we will probably see very little of that disclipine in action.  This is perhaps why in reality very few educators will change a grade for disciplinary reasons.

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