High School Students: Due Process
Teaching about Due Process of the Law
QUESTIONS
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)
>>Questions
>>Due Process
Graph
Law Day For Schools Home
| Law Day Lessons Home |
