Selective Incorporation apgoPo Excerpt of the text of the Fourteenth Amendment



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Procedural due process is understood to mean that when a state or local government seeks to take some sort of action against an individual that adversely affects that individual (their life, liberty, or property), the state must follow certain procedures to protect the individual’s rights. The most obvious example is in criminal proceedings. In order to deprive someone of his or her liberty (through incarceration), property (through fines or forfeitures), or life (by capital punishment), states must abide by certain procedures. The accused person must be provided an attorney, cannot be subject to unreasonable searches, does not have to testify against himself or herself, must be given the option of a trial by jury, is protected against double jeopardy, and is protected against cruel or unusual punishments (among other protections).

However, state and local governments are responsible for more than just criminal proceedings. Institutions such as public universities, parks, school districts and individual schools, and public libraries are all considered forms of state “government.” This means that the due process clause applies to them as well. As a result, these bodies must provide procedural due process in their actions against individuals, whether that action is to dismiss a tenured professor or teacher, terminate welfare benefits, or revoke parole or probation.

An example relevant to high school students is a school district’s power to suspend or expel students. The Supreme Court has ruled that a child has a property interest in a public education (in other words, a public education has a material benefit to children), and so depriving a student of access to public education is “a serious event in the life of a suspended child.”2 Even if a student is to be suspended for 10 days or fewer, the Court has held that due process requires “that the student be given oral or written notice of the charges against him (or her), and if he (or she) denies them, an explanation of the evidence the authorities have and an opportunity to present his (or her) side of the story.”3 However, the Supreme Court has also recognized that schools need to maintain order, and it would be impractical to require a school district to go to court every time it sought to suspend or expel a student, or to provide an attorney to students. Instead, school districts must create and abide by processes that give a student notice of the charges against him or her and the ability to respond to those charges. School boards are then responsible for determining the guilt or innocence of the student and the appropriate punishments.

In short, the due process clause protects individuals from the arbitrary adverse actions of state or local governments by ensuring that procedural safeguards are followed.



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