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Saturday, August 13, 2011

Essay on Due Process Clause

The Due Process Clause in the US Constitution is the fundamental guarantee that all proceedings against a person shall be fair, and that proper notice and an opportunity to be heard will be given before any action is imposed that may deprive a person of his life, liberty and property.  It is also a constitutional guarantee that an ordinary person may use for his defense before the state deprives him of either of his life, liberty and property.  It also ensures that should the state do so it must be reasonable, fair and just.  This constitutional guarantee is embodied in the Fifth Amendment which states that “No person shall be…deprived of life, liberty and property without due process of law.” 

The Fifth Amendment is one of the most commonly used provisions in the constitution especially by a person who is accused of a crime.  The Due Process Clause is a guaranty against any arbitrariness on the part of the government whether committed by legislature, the executive or the judiciary.  If the law itself unreasonably deprives a person of his life, or his liberty or his property, then he is denied the protection of due process.  If the enjoyment of his rights is conditioned on an unreasonable requirement of law the due process is likewise violated.  Any government act that militates against the ordinary norms of justice or fair play is considered an infraction of the great guaranty of due process and this is true whether the denial involves violation merely of the procedure prescribed by the law or affects the validity of the law itself. 

Because of the due process requirement, legislators cannot simply pass legislations providing that individuals who are caught stealing shall immediately be convicted with imprisonment.  The legislators cannot likewise pass laws which prohibit certain individuals from speaking certain languages in the community.  Neither can the law enforcement officers be allowed to simply arrest individuals and confine them in prisons without showing of any probable cause.   

The Due Process Clause requires that the law in itself must be valid and must have a valid governmental purpose.  Further, individuals are required to be heard first, to be given opportunity to present evidence on his behalf and to be heard by an independent and impartial tribunal before he can be convicted for a crime. So important is the due process clause that the Supreme Court has in a number of cases reversed the convictions of the accused because the accused was denied of his due process rights. 

Due Process Protects Private and Consensual Sexual Intercourse
The right to due process was once invoked by two persons who were caught engaged in the intimate act of sexual intercourse within the private confines of their home in violation of the anti-gay laws of the state.  In the landmark case of Lawrence v. Texas (539 US 558), John Geddes Lawrence Tyron Garner were caught in the act of having a private and consensual anal intercourse by a law enforcement officer.  On September 17, 1998, the Harris County Sheriff received a report of an alleged weapons disturbance.  In response to the call, the sheriff entered into the private residence of Lawrence and Garner and caught them in the act of having private and consensual anal intercourse.   They were immediately arrested and placed in confinement for violation of Texas Criminal Law.  Chapter 21 of Section 21.06 of the Texas Penal Code considers misdemeanor when someone “engages in deviant sexual intercourse with another individual of the same sex.”  Deviant sexual intercourse is defined as any contact between any part of the genitals of one person and the mouth or anus of another person; or the penetration of the genitals or the anus of another person with an object.  They were initially convicted by the Justice of Peace.  They appealed their case to the Texas Fourteenth Court of Appeals.  In a 2-1 decision, the Court of Appeals ruled that the Texas law was unconstitutional.  This was later reconsidered and reversed in a 7-1 decision by the Court of Appeals en banc. 
In a 6-3 decision, the Supreme Court declared that the law is unconstitutional.  Firstly, the Supreme Court clarified the opinion of the lower court saying that it is incorrect to state that there is a long standing antipathy against homosexual activities.  Sodomy was prohibited early in our history because it did not promote procreation which should be the ultimate goal of every sexual activity.  The Texas Law prohibiting sexual intercourse between people of the same sex violates due process which is protected by the US Constitution.  It bears stressing that the petitioners were caught in a moment of sexual intimacy.  They were both adults who willingly gave their consent to such intimacy.  There was no physical force, intimidation or coercion involved.  The right of liberty of every individual under the due process clause gives them the freedom to engage in private conduct without government intrusion and interference.  Further there is no valid reason to be advanced by the government for its intrusion in the affairs of private individual.  The significance of this decision is that it emphasizes the legal principle even criminal laws of a state cannot prevail over the protection guaranteed under the US Constitution.  Moreover, it upholds the right of gays to engage in private consensual sex (Chad Graham, 2004, p.1).

Due Process Rights of Students

However, the due process clause may also be invoked by students against the school its administrators as it also extends to the realm of the educational institutions, specifically in favor of students (V Lane Rawlins, 2005, p.1). This constitutional guarantee as applied in educational institution serves two distinct purposes.  The first is to ensure that with the use of fair procedures accurate decision is reached and that erroneous deprivation of constitutionally protected interest is avoided.  Before a student is punished by dismissal or suspension, it is necessary that proper procedure has been followed and that the right decision was made.  However, in filing a case for violation of due process the Supreme Court has declared that the student must prove that dismissal from school has deprived him of either a “liberty” or “property interest. (Board of Curators of the University of Missouri v. Horowitz 435 US 78) 

The right to remain at school is an interest that is constitutionally protected.   The right to public education was one of the issues that was decided in the case of Goss v. Lopez (419 U.S. 565) where the Supreme Court ruled that “Protected interests are normally not created by the Constitution.  Rather, they are created and their dimensions defined by an independent source such as state statutes or rules entitling the citizen to certain benefits.” (419 US 567). 

The second goal of due process in educational institutions is to assure the students that before the decision was reached, the students were heard and that they were treated fairly b school administrators.  It seeks to give the appearance of fairness in the procedures involved before the decision was reached.  It also serves as a guarantee against arbitrariness on the part of the school administrators. 

Procedural Due Process
In the educational setting, there are two types of due process that are also protected under the US Constitution.  The first is the procedural due process and the other is the substantive due process.  Procedural due process entails compliance on the part of the educational institution of certain procedures and steps designed to guarantee fairness and to ensure that its decision was arrived at only after observance of the prescribed procedure. 

Procedural due process in educational settings involves the following components: notice, hearing and appeal.  While there may not be specific provisions under state laws, as a matter of procedure, school administrators are required to send a written notice to a student informing him of the school policy violation or infraction he has committed and giving him opportunity to explain his side.  For example, a student who has committed an infraction of failure and refusal to wear the proper uniform at school must first be given written notice informing him that there is a school policy requiring students to wear school uniform and that the student has violated this school policy.  He will thereby be informed that there will be hearing to determine whether he indeed has violated the school policy.

School administrators are likewise required to hold hearings after notice is served to the student and his parents.  This is usually an informal process where the students with their parents are asked to explain whether there is any truth to the violation of school policy. In some cases, the students’ parents may seek the assistance of counsel so that they may be better represented during hearings.  The essence of the conduct of hearing is so that the student may be given the opportunity to meet the accusation against them and if possible deny the same or offer justifications his actions. 

After the decision is handed down by the school administrators, the student should also be given the opportunity to file an appeal with an independent body so that he may seek reconsideration of the school administrator’s decision.  Usually the parents go to court if dissatisfied with the decision of the school administrators or the independent body.  Appeal gives the students the opportunity to rectify whatever errors have been made from the level of school administrators.  These three components ensure the before the student is disciplined, punished or otherwise deprived of his constitutionally protected interests, procedural guidelines have been observed

Substantive Due Process

Substantive due process on the other hand, relates to the issue of a justifiable objective on the part of the educational institutions which would necessitate the deprivation of constitutionally protected interest and that the punishment used seeks to accomplish this objective.  It seeks to guarantee students their rights by ensuring that punishment is appropriate for the offense committed and that it is necessary for the accomplishment of the school administrators’ objective. 

Violation of substantive due process was one of the issues in the case of Ingraham v. Wright (430 US 651), which involved several high school students filing suit against school administrators in Dade County, Florida school for excessive use of corporal punishment.  They said that they were hit by a stick while being forcibly held over a table because they were slow to respond to the teacher’s instructions.   Among the issues decided by the Supreme Court in this case are “whether the amount of force applied was so severe that it was disproportionate to the need of education, whether the punished so applied was inspired by malice or sadism rather than excessive zeal that amounted to brutal and inhumane abuse and whether the punishment was so inappropriate and the injury so severe that it was shocking to the conscience.” (Lynn Roy, 2001, p.2)  

Substantive due process also requires that a school policy must be related to the protection of a legitimate state interest.  The “rationality test” requires that the existing school policy must be able to promote the interest which the school seeks to protect.  For example, substantive due process is violated if a school policy is not related to the offense or the offense.  The courts have applied this test in declaring that the substantive due process rights of the students have been violated.  In one case, the Sixth Circuit Court of Appeals in the case of Seal v. Morgan, 229 F.3d 567 (6th Cir. 2000) ruled that the school’s “zero tolerance policy” against possession of a weapon which imposes suspension against students whether or not they had knowledge that they are in possession of a gun is irrational (Stephanie Levy, 2001, p.2). 

The boundaries between procedural and substantive due process are not fixed and have frequently been the subject of litigations.  In essence however, substantive due process pertains to the reasons behind the school policy and its relationship to the goal it seeks to achieve and that it must not contain provisions that may result in arbitrary and unfair treatment of a student.  Procedural due process, on the other hand, pertains to the manner the school administrators were able to arrive at their decision.

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