Excerpted From: Leah E. Soloff, Due Process Protections for Charter School Students in Long-term Exclusionary Discipline Proceedings, 92 Fordham Law Review 767 (November, 2023) (426 Footnotes) (Full Document)


LeahESoloffNew York City's largest charter school network, Success Academy, serves more than 17,000 students throughout fifty-three schools across the city. The network principally serves low-income students and students of color throughout the city. The network has been subject to significant controversy since opening in 2004, particularly in relation to its strict student discipline policies. In 2015, Success Academy was strongly criticized when it was revealed that a principal at one of its schools had made a list of students entitled “Got to Go.” On this list were the names of students whom the principal found to be difficult or disruptive and whom the principal wished to push out of the school system. Of the sixteen students on the list, nine ultimately left the Success Academy network “after facing continuous suspensions and harsh punishments.” Often, these suspensions came in response to minor disruptions that normally would not result in suspension, such as screaming, throwing pencils, or running away from school staff.

This incident sparked a wider criticism of Success Academy: that the school uses frequent suspensions and harsh discipline to push out difficult students in order to maintain high levels of success in the public eye. Success Academy publishes significantly higher average standardized test scores than traditional public schools, and many commentators argue that this is a result of its intense discipline practices, including frequent use of exclusionary discipline. For example, in the 2013-2014 school year, most Success Academy schools suspended at least 10 percent of their student body, with some schools suspending up to 23 percent, while traditional public schools suspended, on average, 3 percent of students that year.

Success Academy's heavy reliance on exclusionary discipline is emblematic of the strict discipline policies used by many charter schools across the nation. “Exclusionary discipline” is defined as discipline policies that exclude students from access to their usual educational setting, including, most prominently, suspensions and expulsions. Charter schools in the United States, which predominately cater to students from low-income communities and students of color, have been accused of using punitive and exclusionary discipline policies in order to control their student bodies and ensure that students meet the schools' high academic standards.

Given charter schools' significant use of exclusionary discipline, which can have long-term effects on students, it is necessary to examine the protections that charter school students are afforded in school disciplinary proceedings. This Note will analyze the relationship between charter schools and due process protections for students in exclusionary discipline proceedings. Part I of this Note will provide background on charter schools and exclusionary discipline. It will also introduce the basic standard for due process protections afforded to public school students in disciplinary hearings. Part II of this Note will further explore the due process protections provided to students in disciplinary proceedings, particularly examining the significant disagreement among courts as to what additional protections students facing long-term exclusion must be afforded. This part will focus on disagreement over three core due process protections: (1) the right to confront and cross-examine witnesses, (2) the right to an independent adjudicator, and (3) the right to retain legal counsel. Part III of this Note will argue that due process requires these three core protections in long-term disciplinary proceedings and that affording these rights to all public school students, including charter school students, is a just public policy decision.

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Charter school students are deserving of strong due process protections during disciplinary hearings that could result in exclusion from school. The current inconsistent judicial doctrine regarding the due process protections afforded to these students does not provide the level of protection required by due process. Because many charter school students derive their protections only from the Due Process Clause, and not from state statutes, there must be consistent, nationwide guidance for courts regarding the due process protections afforded to students in long-term disciplinary hearings. Due process requires that such guidance include (1) a right to confront and cross-examine witnesses, (2) a right to a strictly interpreted “impartial adjudicator,” and (3) a right to retain legal counsel. Without these due process protections, charter school students, who are most often vulnerable students, are at risk of serious deprivations of their education interests and all of the negative, life-long consequences that come with such deprivations.

J.D. Candidate, 2024, Fordham University School of Law; B.A., 2019, Duke University.