ABSTRACT

Fifty years ago, the Supreme Court held in Goss v. Lopez that students have cognizable property and liberty interests in their education. However, when stu- dents are accused of breaking school rules, that interest can be stripped away with merely “some kind of notice and some kind of hearing.” This vague and minimally protective language has led to the deprivation of due process for millions of school children each year, with disproportionate impact on Black and Brown students and students with disabilities. And although some states and local school districts have chosen to build upon the Goss threshold, the increasing prevalence of char- ter schools threatens to continue to deprive some of the most vulnerable students of greater protection.

Today, we have a strong empirical understanding that exclusionary discipline harms students in both the short- and long-term. In the short term, suspended stu- dents are denied not only a meaningful education, but also — as schools have increasingly come to serve as key components of the social safety net — access to nutrition and healthcare. In the long term, suspended students are exponentially more likely to fall behind, drop out of school, and be drawn into the notorious “school-to-prison pipeline.” And yet, the Court has never returned to the question of how much process students are due before suffering these significant harms.

This article argues that it is long past time for the Court to revisit the Goss standard. Given the increased array of property interests and better-understood liberty interests that are threatened when a student is suspended, this article posits that the Mathews v. Eldridge balancing test, which has never been applied by the Court in the context of student discipline, now leads to a different result than it would have in 1975. Further, given the federal courts’ recent track record of de- clining to expand due process protections, this article examines how state courts, state legislatures, and state constitutions can continue to fill the gaps left by Goss and ensure that students’ educational rights are protected.