When Virtual Discipline Becomes Virtual Suspension: Protecting the Due Process Rights of Virtual Learners

Authors

Peggy Nicholson, Duke Law SchoolFollow

Document Type

Article

Publication Date

2021

Keywords

exclusionary school discipline, distance education

Abstract

It is well established that public school students do not shed their constitutional rights at the schoolhouse door. But what about when the “schoolhouse door” is a computer screen, with students entering and exiting the learning environment from the comfort of their homes through an internet-enabled device? The rise of virtual learning, expedited by the COVID-19 pandemic, raises questions about when and how constitutional rights apply to public school students in the virtual setting. This Paper examines one of those constitutional questions, by exploring the application of procedural due process to the emerging practice of virtual discipline. The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution was first applied to school discipline by the U.S. Supreme Court in Goss v. Lopez, where the Court found that suspensions of up to ten days required notice and hearing under the Due Process Clause. The due process protections established under Goss represent important protections for students from wrongful and unnecessary school exclusions, which have been linked to long-term adverse impacts on student outcomes and school climates. Further, data shows these adverse impacts are borne disproportionately by already marginalized groups of students, such as Black students and students with disabilities. As such, ensuring these constitutional protections are extended to discipline in the virtual environment is of utmost importance. After reviewing Goss and its subsequent applications to various forms of traditional school discipline, this Paper will explore how different acts of virtual discipline might invoke due process concerns. Where the Due Process Clause is implicated in acts of virtual discipline, this Paper will also analyze what procedures are constitutionally mandated. Finally, recognizing that proactive action is needed to prevent infringement on students’ constitutional rights in the virtual setting, this Paper will prescribe steps that school districts can take to prevent unnecessary or wrongful disciplinary exclusions, as well as the responsibilities of state and federal educational agencies to provide oversight and monitoring in this area.

Citation

Peggy Nicholson, When Virtual Discipline Becomes Virtual Suspension: Protecting the Due Process Rights of Virtual Learners, 50 Journal of Law and Education 133-169 (2021)