Due Process Protection Research Articles

How the Courts Influence Teaching and Student Discipline: Lessons Learned From Case Law

INTRODUCTION Most students enrolled in a professional medical program are well over the age of majority and better acquainted with their rights and the legal system than “traditional” students. Students who act professionally and perform well academically are easy for professional schools to manage. Much more difficult to manage are those who perform poorly academically or professionally. Of these, poor academic performance is far easier to demonstrate, and the consequences are often cut and dried: fail two courses and you are subject to dismissal (all set out in the student handbook). Criteria such as multiple choice exam scores are considered objective, and even subjective assessments by professors are accorded deference by the courts. More challenging are penalties for students accused of unprofessional or unethical behavior or those who perform poorly in clinical settings. This case law review will discuss the fact patterns of some representative cases and attempt to glean some lessons from each situation. Emerson v North Idaho College In the case of Emerson v N. Idaho College, a nursing student at the college’s nursing program was dismissed in 2003 for unsatisfactory attendance, incomplete assignments, and overall poor performance.1 The student filed a complaint in state court claiming defamation, emotional distress, age and national origin discrimination, disability (hearing impairment), and failure of due process. The student alleged that statements were made that demonstrated bias against those of Hispanic origin, and that the program failed to accommodate her hearing disability. Because the college was a state institution and thus a governmental entity to which certain constitutional guarantees of substantive due process and equal protection under the law applied, federal court jurisdiction existed and the case moved to federal court. The age discrimination claim was dismissed because the nursing program could document that older students had successfully completed the program. The disability discrimination claim was dismissed for many reasons. First, the The Academic Law feature focuses on legal issues that affect those working in academic environments. Articles are typically written by the feature editor. Suggestions for topics to be covered are welcome. The feature editor can be reached at:

Assuring the Form Has Substance

Assessing response to intervention (RTI) is a complex process that requires selecting interventions, identifying a reasonable strength of intervention, implementing the intervention, assessing progress, and applying decision rules to the resulting data. Appropriate standards and practices are critically important for all of these activities. However, the implementation of interventions has received scant attention in the RTI literature to date despite emerging empirical evidence that assuring intervention implementation may be one of the most challenging aspects of implementing RTI. This article discusses the critical role of plan implementation within RTI. Documentation that interventions were implemented is both a substantive necessity for implementing an entitlement process in which services are integrated with assessment (RTI) and a due process protection for students. The current data regarding the assessment and improvement of intervention plan implementation is also briefly reviewed.

APA Sees Chance to Improve MH Benefits for Veterans

Back to table of contents Previous article Next article Government NewsFull AccessAPA Sees Chance to Improve MH Benefits for VeteransRich DalyRich DalySearch for more papers by this authorPublished Online:15 Sep 2006https://doi.org/10.1176/pn.41.18.0008APA has weighed in on an ongoing revision of the Department of Veterans Affairs' (VA) benefits guidelines that is intended to make those benefits more accessible to veterans who need the services.In a July 31 letter to VA Secretary James Nicholson, APA Medical Director James H. Scully Jr., M.D., highlighted potential changes that could ground the mental health regulations in current psychiatric concepts. The changes stem from a 2001 VA task force recommendation that compensation and pension regulations affecting veterans be rewritten and reorganized “in order to improve VA's claims-adjudication process.” The VA has not established a timeline to finalize or implement the proposed changes.The regulatory language changes are a chance not only to translate the regulations into plain English but to allow “increased fairness to veteran claimants with psychiatric disorders,” Scully wrote.APA's comments centered on the relationship between VA claimants' psychiatric status and the department's determination of a veteran's eligibility for benefits. The VA regulations of particular focus are those that address the impact of beneficiaries' substance abuse and other mental health issues in suicides and homicides on the benefits they and their families could receive.The VA regulations limit benefits if so-called willful misconduct has occurred. These regulations define the situations in which the VA does not owe benefits for the injury, disease, or death of former members of the military because it determined that the person brought the situation upon himself or herself.In determining willful misconduct, the APA letter states, VA officials must take into account certain psychiatric elements relevant to the claimant's state of mind. The letter emphasizes that the VA policy should change to require a series of “legally sufficient” findings or a series of due-process protections before a finding of willful misconduct can bar a veteran's benefits.“It is essential for VA adjudicators, as well as those representing veterans in legal proceedings, to have a common definition for insanity.”APA is encouraging the VA to compensate veterans fairly when weighing compensation for disability or death against veterans' degree of responsibility for that injury or death.APA's letter urged the VA to amend it regulations to explicitly encompass all disabling psychiatric disorders and conditions, including addictions. Such addictions, including pathological gambling, “can seriously impair quality of life to the point of disability,” Scully said.The VA regulations refer only to general “mental unsoundness” as determined by “available lay and medical evidence” when considering whether former service members' actions should disqualify them from benefits.VA regulations should adopt clear definitions for the terms it uses to determine disability, Scully told VA officials, including when the use of alcohol and drugs rises to the level of “abuse” or“ addiction.” He urged the use of a psychiatrist's diagnosis before any administrative determination of substance abuse, “insanity” or“ mental unsoundness,” which current regulations do not address. Such a diagnosis would give the VA a medical basis for its actions.The VA also should provide a definition for “insane” or“ insanity” to aid in its benefits decisions involving homicide, Scully said.“Definitions of criminal-law `insanity' defenses have varied by jurisdiction over time, so it is essential for VA adjudicators, as well as those representing veterans in legal proceedings, to have a common definition for insanity,” Scully wrote.Additionally, the VA guidelines state that the department considers binding any court determination that a person was insane at the time of a killing but do not define what type of court “determination” it is referring to. It is unclear, Scully pointed out, whether the determination applies to an ultimate court finding of not guilty by reason of insanity or whether a court's inclusion of insanity as a finding of fact in a case would fulfill the requirement.Although the current VA regulation rewrite is focused on various aspects of benefit adjudication, further rewrites are expected of other VA rules and regulations, and APA plans to comment whenever it believes its expertise can guide VA decision making.A copy of the proposed VA regulation changes are posted at<http://thefederalregister.com/i.php/outbound/http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/06-4940.htm>. The APA letter is posted at<www.psych.org/members/download.cfm?file=1249>.▪ ISSUES NewArchived

Toward an International Criminal Procedure: Due Process Aspirations and Limitations

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.

In Prosecutors We Trust: UK Lessons for Illinois Disclosure

This article examines the duty of American prosecutors to ensure fair trials and safeguard confidence in the criminal justice system. To accomplish this, the article seeks, by comparative study, to evaluate the likelihood that recent amendments to the Illinois disclosure rules will strengthen prosecutorial observance of evidentiary disclosure responsibilities in light of the problems encountered by the United Kingdom in implementing similar reforms. Prosecutorial failures to disclose exculpatory evidence to the defense significantly contributed to the widely-publicized problems in the administration of the death penalty in Illinois. These errors led to a series of death row exonerations, and, in response, the Illinois legislature and courts adopted additional rules for preventing disclosure violations. Analysis of the UK disclosure experience with analogous reforms reveals many lessons for Illinois and other states wishing to address problems surrounding the disclosure of exculpatory evidence. In assessing the potential of the Illinois reforms to achieve prosecutorial compliance with disclosure duties, this article takes an essential first step towards developing an effective model of disclosure, which should prove instructive for policymakers dedicated to advancing the due process protections secured by the prosecutorial duty to disclose.

The Secular Fourteenth Amendment: Lawrence v. Texas and Polygamy

No Free Exercise challenge to the validity of criminal prohibitions on the practice of polygamy has yet succeeded. However, as polygamy appears to be a plausible and secular way of life for many people, other constitutional challenges are worth considering. This Comment argues that criminal polygamy prohibitions should be found unconstitutional under either the Due Process or Equal Protection clauses of the Fourteenth Amendment, and that problems attributed to the practice are better dealt with directly through other criminal laws.

Using Criminalization and Due Process to Reduce Scientific Misconduct

The issue of how to best minimize scientific misconduct remains a controversial topic among bioethicists, professors, policymakers, and attorneys. This paper suggests that harsher criminal sanctions against misconduct, better protections for whistleblowers, and the creation of due process standards for misconduct investigations are urgently needed. Although the causes of misconduct and estimates of problem remain varied, the literature suggests that scientific misconduct—fraud, fabrication, and plagiarism of scientific research—continues to damage public health and trust in science. Providing stricter criminal statutes against misconduct is necessary to motivate whistleblowers and deter wrongdoers, and the provision of basic due process protections is necessary for ensuring a fair and balanced misconduct investigation.

Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’

The United States administration’s policy of detaining ‘unlawful enemy combatants’ at the United States military base in Guantanamo Bay falls short of international and domestic law standards. The problem in the authors’ view is not that the United States has decided to designate those captured on the battlefield in Afghanistan as ‘unlawful combatants’ who (allegedly) fall outside the scope of international humanitarian law. International humanitarian law has long recognized the existence of such a category. The problem is rather that international humanitarian law has been sporadically and selectively applied and in many respects has been ignored or violated with respect to the detainees held in Guantanamo and elsewhere within the context of the ‘war on terror’. In its recent judgements in Hamdi v. Rumsfeld, Rumsfeld v. Bush and Rasul v. Bush the United States Supreme Court has not passed an unambiguous and clear judgement on the United States policy towards unlawful enemy combatants. The Court may have rejected the executive’s claim that it has the authority to incarcerate people suspected of terrorist connections without any judicial review, the three decisions have not imposed on the executive a clear framework governing the detention of alleged terrorists. The Court has upheld the government’s power to hold ‘enemy combatants’ according to standards that fall short of the requirements of the Geneva Conventions. Moreover, the due process protection granted to those challenging their status as’ enemy combatant’ is so deferential to the executive that it could render review virtually insignificant.

‘The victim of prejudice and hasty consideration’: The slave trial system in Richmond, Virginia, 1830–61

In the antebellum period, a system of slave trials operated in Virginia that was entirely at odds with the common law practices that governed the trial of most defendants, free and enslaved, throughout the southern states. This article examines the operation and implications of this system in Richmond, Virginia, between 1830 and 1861 and argues that the absence of due process protections for slaves enabled the legal system to better serve the interests of the slaveholding class than in common law jurisdictions. This was particularly significant in Richmond, as urban-industrial conditions made slaveholders extremely dependent on the law to combat slave crime. By the 1850s, however, the conflict between Virginia's slave trial system and Anglo-American common law culture, as well as between slaveholder and nonslaveholder interests, had resulted in adjustments to the system that signalled the start of its decline.

The Challenge of Due Process, 1983, and Property Rights

This outline is intended to be a basic primer on some of the issues that surround that application of the Due Process Clause to local land use decision making. Many courts are reluctant to use the Due Process Clause to protect property and economic rights. This reluctance stems, in part, from a fear of judicial activism - at least in the post Carolene Products world where social rights are seen to be in greater need of judicial protection than economic rights. After procedural due process protections were extended to new property or entitlements, the United States Supreme Court cabined this expansion in Roth v. Board of Regents by confining it to new property that had a legitimate claim of entitlement. While this limitation of due process for new property was not targeted to the application of due process to old or real property, a number of state and lower courts have since held that neither procedural or substantive due process rights attach to interests in real property unless those interests are already vested under state law. This trend is contrary to the core function of the due process clause to protect rights in property and begs the question of how property rights can become vested in a regime devoid of due process. The reluctance of courts, especially federal courts, to second-guess local land use decision-making is a substantial hurdle to the use of the Due Process Clause to reverse unfair local land use processes. This paper also summarizes briefly the law of procedural due process as it relates to land use. The application of substantive due process to land use decisions - when that doctrine is available - is fraught with inconsistency across and even within various appellate jurisdictions. There is no coherent understanding or application of a consistent theory of substantive due process in the circuit and state courts. Moreover, the standard of substantive due process review for land use decisions varies wildly from arbitrary and capricious to shocks the conscience, the latter standard being more appropriate to deprivations of liberty in the context of law enforcement than for local land use decision making. Finally, this outline touches briefly on the application of the Equal Protection Clause to local land use decision making.

The Road to Brown, Its Leaders, and the Future

The 50thanniversary of the historic 1954U.S. SupremeCourt decision in Brown v. Board of Education provides an opportunity to trace the origin of Brown and the long journey by African Americans to achieve quality elementary and secondary education in this country. This journey began with passage of the Fourteenth Amendment to the U.S. Constitution in 1868, which applied the Bill of Rights to the states. This action gave the newly freed slaves the same legal rights as White Americans, citizenship and equality under the law and due process protection against state action under the Bill of Rights. Even though public education did not exist for Blacks when the amendment was enacted, it gave Blacks protection against future negative state action. This journey was slowed in 1896 when the Court in Plessy v. Ferguson ruled that the doctrine of separate but equal could satisfy the equal protection clause of the Fourteenth Amendment. In the 1940s, the National Association for the Advancement of Colored People (NAACP) forcefully renewed the journey again. In 1954, the Court reversed the Plessy ruling and held that de jure, state enforced racially segregated education did not meet constitutional requirements. This article reviews this history and makes projections for the future of public education for African Americans, 135 years after this journey began with passage of the Fourteenth Amendment.

Introduction

The journey by African Americans to achieve quality education began with passage of the Fourteenth Amendment to the U.S. Constitution providing the freedmen citizenship and protection from hostile state action under its due process and equal protection clauses. This article traces the plight of Black Americans to gain access to quality schools under the political control of a rarely supportive White majority. The authors tell of the forces active in reducing the impact and effectiveness of the 1954 U.S. Supreme Court that declared the separate but equal doctrine made by an earlier Court that state enforced racially segregated schooling was unconstitutional. They reviewed the efforts of the National Association for the Advancement of Colored People (NAACP) to reverse the Court’s separate but equal doctrine and move the country through the courts for 50 years to produce quality desegregated public education for all children. Also reviewed were the forces actively involved in efforts to reduce the effectiveness of the Court’s decision and recent changes by the Court in its interpretations of the original Brown decision. We expect the articles chosen for this special issue on the 5th anniversary of the Brown decision will help tell a more complete story of this journey by African Americans to achieve quality public education for their children.

Guidelines for Adolescent Health Research*1, *2A position paper of the Society for Adolescent Medicine

Guidelines for Adolescent Health Research*1, *2A position paper of the Society for Adolescent Medicine

U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction

In Phillips Petroleum Co. v. Shutts, the United States Supreme Court held that plaintiff class members residing outside the forum state are entitled to the minimal due process protections of notice, an opportunity to be heard, an opportunity to opt out, and adequate representation. However, class actions involving class members not just from other states but from other countries raise distinctive due process concerns in each of these areas. In this Article, Professor Bassett examines the considerations impacting on due process and personal jurisdiction when non-U.S. claimants participate in class litigation, and proposes guidelines necessary to ensure that the class judgment will have a binding effect on foreign claimants.

Managers as Judges in Employee Disputes: An Occasion for Moral Imagination

Abstract:Employee-employee conflicts are common occasions for managerial intervention. In judging such disputes, managers bring to encounters a frame that is not conducive to employee due process. Making managers aware of their legal responsibilities in resolving employee disputes is a poor substitute for managers’ understanding and implementation of their ethical due process obligations. Moreover, moral imagination is necessary in order to counter the effects of the managerial frame that employees are either not worthy of due process protections or that such protections are not a priority.

Adjudicative Competence in the Modern Juvenile Court

In recent years, as juvenile justice systems across the country have become more punitive and courts have held that juveniles are entitled to adult-like levels of due process protection, the adjudicative competence of juveniles has increasingly come into question. To clarify this trend, we reviewed the current state of the law in the fifty states and the District of Columbia, focusing on recent court opinions and legislation as of January of 2000. We then summarize relevant empirical research on juveniles' competency-related capacities in delinquency proceedings. As a case study, we examine the development and implementation of juvenile competence legislation in Virginia, analyzing the legal, clinical, and practical considerations that arise from the recognition of a juvenile competence requirement. We conclude that the passage of a juvenile competence statute does not necessarily lead to an overwhelming number of juveniles being found incompetent. With quality training of evaluators and attorneys, further research on clinical components of adjudicative competency in juveniles, and legislative support and funding, a juvenile competence requirement can help ensure the fair and effective functioning of the modern juvenile court.

Religious Group Vows to Reform MH System in U.S., Canada

Back to table of contents Previous article Next article Professional NewsFull AccessReligious Group Vows to Reform MH System in U.S., CanadaKen HausmanKen HausmanSearch for more papers by this authorPublished Online:15 Mar 2002https://doi.org/10.1176/pn.37.6.0005The organization representing reform Judaism in the United States and Canada has decried the absence of a comprehensive system of mental health care for citizens of those countries and vowed to do something to help remedy the problem.The Union of American Hebrew Congregations’s (UAHC) General Assembly voted at its December meeting to step into the breach and help its member congregations fill in the gaps that prevent people with mental illness from obtaining mental health services.Leading the resolutions in the 13-point statement is a commitment to develop materials that will help personnel of synagogues, religious schools, and youth-oriented programs “recognize and deal appropriately with members and participants with mental illnesses” and to urge member congregations to participate in efforts to destigmatize mental illness.The assembly also called on its member congregations to participate in programs to destigmatize mental illness and to ensure that mentally ill people are welcome in those synagogues.In addition, the UAHC statement calls on the U.S. and Canadian governments to increase funding for treatment and other services that help mentally ill people “live healthy and independent lives.” It urges funding in particular for research and “innovative programs” to address the needs of people with co-occurring mental and substance abuse disorders. The statement also encourages the U.S. government to adopt the Canadian policy of mandating insurance parity for mental and physical illnesses and calls on the UAHC itself, as well as its member congregations, to provide employee health insurance policies that have parity in coverage.A major section of the UAHC assembly’s resolution spotlights the plight of the many prison inmates who have a mental illness. For example, it urges shifting nonviolent mentally ill prisoners to community-based mental health programs and limiting the use of civil commitment and mandatory treatment “to circumstances where it is used only with due-process protections.”The resolution also addresses the issue of seclusion and restraint and states that they should be restricted to situations that cannot be managed through any other type of intervention.The mental health needs of children and teenagers are also a focus of the UAHC statement. It calls for the development of a “coordinated system of care” for mentally ill youngsters emphasizing “early recognition, prevention, and intervention, especially focusing on the prevention of suicide.” It also suggests that both countries have paid inadequate attention to ensuring that schools are capable of addressing mental health needs and that the professionals who provide mental health services in child-care facilities are specifically trained to deal with children and adolescents.Paul Appelbaum, M.D., APA’s president-elect, said he finds the ambitious initiative an encouraging “road map” for improving the lives of people with mental illness. “Grass-roots efforts of this sort are critical to the destigmatization of mental illness and to persuading Congress and state legislatures to agree to adequate funding of psychiatric treatment,” he told Psychiatric News. He said he hoped that “the UAHC will not stop with this declaration, as positive as it is. I would encourage them to identify priority areas of focus and to become engaged with the political process to help make this dream a reality.” ▪ ISSUES NewArchived

A Population at Risk: Civil Commitment of Substance Abusers after Kansas v. Hendricks

In its 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court radically changed the face of civil commitment. In finding the Kansas Sexually Violent Predators Act constitutional, the Court liberalized the first constitutional requirement for involuntary commitment from "mental illness" to a much broader "mental abnormality" standard, without correspondingly restricting the second requirement of dangerousness. The decision essentially authorizes states to civilly commit a broad range of individuals without sufficient due process protections. This Comment explores the possibilities for expansion of civil commitment in the wake of Hendricks. It argues that the holding was unjustifiably broad, focusing in particular on the potential danger facing substance abusers. In conclusion, it offers several suggestions for mitigating the potential misuse of this dangerous precedent.

A population at risk: civil commitment of substance abusers after Kansas v. Hendricks.

In its 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court radically changed the face of civil commitment. In finding the Kansas Sexually Violent Predators Act constitutional, the Court liberalized the first constitutional requirement for involuntary commitment from "mental illness" to a much broader "mental abnormality" standard, without correspondingly restricting the second requirement of dangerousness. The decision essentially authorizes states to civilly commit a broad range of individuals without sufficient due process protections. This Comment explores the possibilities for expansion of civil commitment in the wake of Hendricks. It argues that the holding was unjustifiably broad, focusing in particular on the potential danger facing substance abusers. In conclusion, it offers several suggestions for mitigating the potential misuse of this dangerous precedent.

Appellate Juvenile Justice: Canadian Style

ABSTRACTWhile appeals are relatively rare in Canada, they have significant outcomes in a juvenile justice system where dispositions are determinate and either the offender or prosecution can appeal the severity of a disposition. Examining the outcomes of ten years of appeals in one province produced two noteworthy findings. First, youths initiate most appeals in Canada, but few are successful in reducing the severity of their dispositions. Second, prosecution‐initiated appeals are comparatively rare but almost always result in substantial increases in the severity of a youth's disposition. Despite the importance of these due process protections, however, Canadian youths do not have the right to state‐funded counsel for appeals, reducing their ability to redress errors or modify unusually harsh dispositions.