The Yale Law Journal

March 2022

Schoolhouse Property

Education LawConstitutional Law

abstract. The Fifth and Fourteenth Amendments prohibit government actors from interfering with an individual’s property without due process of law. Property interests protected by the Due Process Clause are created by subconstitutional sources of law, such as federal, state, or local statutes or regulations, that create reasonable expectations of an entitlement, such as welfare benefits, in recipients. Individuals holding legitimate claims of entitlement to property are typically afforded procedural protections. In the landmark 1975 decision Goss v. Lopez, the Supreme Court determined that state laws entitling children to free public education conferred on public primary- and secondary-school students a property interest in education. To avoid unjust deprivation of students’ property interests, the Court held that the Due Process Clause requires school officials to provide students subject to suspension or expulsion with, at minimum, informal notice and opportunity to be heard by the school disciplinarian—a requirement that, in practice, affords students little protection against unjust exclusion. Since 1975, however, students’ constitutionally protected property interests have expanded beyond just education. Comprehensive fifty-state surveys of state laws and regulations reveal that the majority of states require schools to provide additional benefits to students, specifically government-subsidized meals and health services. This Note evaluates these entitlements and argues that they constitute property interests falling within the ambit of the Due Process Clause. As a result, students subject to exclusionary discipline are deprived not only of education, as the Goss Court foresaw, but also meals and health services. These additional property interests may require reevaluation and expansion of the minimum procedural requirements that schools must afford students subject to suspension or expulsion.

author. J.D. 2021, Yale Law School; B.S. Hon. 2017, Cornell University. Thank you to Professor Claire Priest for her invaluable support and guidance from this project’s inception. I am also deeply indebted to Professor Jason Parkin, Professor Nicholas Parrillo, Professor Andrew Hammond, Timur Akman-Duffy, Hirsa Amin, Joseph Daval, and David Herman for their perceptive feedback. Finally, I am grateful to the editors of the Yale Law Journal, particularly Kate Hamilton and Max Jesse Goldberg, for their insightful suggestions, assistance, and endless patience. All errors are my own.

This Note features three appendices regarding public primary- and secondary-school students’ rights to education granted by state constitutions and corollary entitlements to school meals and school health services granted by state laws and regulations. Each of these appendices are published online following the Note.


The Due Process Clause forbids government actors, including public-school officials,1 from interfering with an individual’s “life, liberty, or property, without due process of law.”2 The Clause protects some of the interests most vital to American democracy. The Supreme Court has understood the principal value of the Clause as promoting accurate decision making,3 thus restraining arbitrary government action.4 Procedural protectionsoften in the form of notice and opportunity to be heard before a government decision maker—function, in addition to facilitating accuracy of the substantive decision,5 to promote participatory and dignitary values6 and advance fundamental fairness.7

The precise scope of the “property” interests protected by the Due Process Clause, and the process that must precede its deprivation, has provoked significant debate since the middle of the twentieth century.8 In the 1970 decision Goldberg v. Kelly, the Supreme Court expanded the scope of constitutionally protected property to statutory entitlements, specifically welfare benefits.9By broadening the forms of property receiving constitutional protection, Goldberg initiated the “due process revolution,”10 resulting in a series of Supreme Court decisions finding that public employment,11 immigration status,12 and, most importantly for this Note, public primary- and secondary-school education13 are property under the Due Process Clause,14 requiring the government to afford property-holders some kind of process.15

Courts assess procedural due-process claims implicating property interests in two steps. The first step asks whether there exists a property interest protected by the Due Process Clause.16 “To have a property interest in a benefit,” a person must “have a legitimate claim of entitlement to it.”17 Legitimate claims of entitlement, in turn, arise from subconstitutional sources of positive law—such as federal, state, or local law or regulation, or express or implied government contracts—that create reasonable expectations of specific benefits.18

If a court finds a protected property interest beyond a de minimis level,19 it moves on to the second step, which asks what, if any, process is due.20 In answering this question, courts focus on identifying the specific procedures that will promote accuracy in the substantive decision.21 While the Supreme Court has explained that when state action implicates one’s property interests the Due Process Clause requires, at minimum, notice and a meaningful opportunity to be heard,22 the “precise contours” of the procedures required by the Constitution are determined by the factual circumstances presented by each case.23 Courts balance three interests: (1) the private property interest affected by the government’s action; (2) the risk of erroneous deprivation through the procedures used and the probable value of additional procedures; and (3) the financial and administrative burdens that additional procedures would impose on the government.24 The private interest weighs heavily in this analysis: the formality of the process required corresponds to the court’s perception of the significance of the implicated property interest.25 The more consequential the property interest, the more likely courts are to mandate more formal, trial-like procedures. Thus, due-process analysis, in both steps, “is sensitive to the facts and circumstances” that a specific deprivation presents.26 At the first step, changes in substantive law may affect the existence or scope of a property interest, as well as the perceived import of the interest. At the second step, changed circumstances may affect how courts weigh the property interest against competing interests to establish the specific process due.

In Goss v. Lopez in 1975, the Supreme Court followed these two steps in determining whether students hold due-process rights to challenge their exclusion from school via short suspensions of ten days or less.27 The Court first found that state laws guaranteeing resident children a free public education and compelling school attendance vested in students a constitutionally protected property interest in public education.28 In other words, when school officials exclude students from the school setting even temporarily through suspensions, they deprive students of an important interest protected by the Due Process Clause.29 The Court then, at the second step, considered which specific procedures were due to ensure that a school official’s decision to suspend a student was based on accurate findings of misconduct.30 After weighing the interests of the student in avoiding unjust exclusion from school against the state interest in maintaining order in schools and conserving resources, the Court determined that schools owe students only informal, “rudimentary” procedures.31 Specifically, school officials must give a student facing suspension “notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”32 The Court specified that an informal conversation between student and disciplinarian moments after the alleged misconduct occurs will typically satisfy this notice-and-hearing requirement.33

Goss’s threshold determination—that public-school students hold a property interest in their educations—remains significant.34 But the specific process it prescribed to protect that interest has done little in practice to shield students from unjust exclusion from schools.35 Many commentators, addressing only the second step of the due-process inquiry, have called for additional procedures that might better protect students from unjust exclusion from school, such as mediation or representation at hearings.36 Fewer, however, have suggested raising the procedural floor by reexamining the legal source of the property interest at stake at the first step. This Note provides such an approach by explaining how the procedural minimum for exclusionary discipline can be reevaluated upon a finding, at the first step of the due-process inquiry, that the state has conferred additional entitlements to students.37

Unlike many other constitutional guarantees, an individual’s procedural rights are not fixed in time38—they evolve with both substantive developments in the law and evolving societal standards for “fairness.”39 Indeed, the Court has repeated the maxim that “due process is flexible and calls for such procedural protections as the particular situation demands.”40 The minimal procedures that Goss prescribed may have satisfied the constitutional requirements of the Due Process Clause in 1975. As both the legal landscape of entitlements and societal circumstances have evolved, however, those procedures may now be insufficient.41

This Note argues that as the state has conferred additional entitlements on public primary- and secondary-school students in the form of school meals and health services, students’ property interests in avoiding unjust exclusion from school has correspondingly broadened. Given this expansion, the due-process protections owed to students subject to removal from school must be reevaluated. Since Goss was decided in 1975, both federal and state law have conferred additional entitlements— “legally enforceable individual right[s]”—upon students.42 Federal nutrition-assistance programs have expanded to fund and administer a wide array of school-meal programs for all children.43 Most importantly, fifty-state surveys reveal that states often require schools to participate in these federal-meal programs or a state equivalent.44 Similarly, the great majority of states now require schools to provide health services of some kind to students.45 Many states go so far as to require preventive healthcare to students at no cost to all parents, or, in some states, at no cost to indigent parents.46

On the whole, since 1975, the school has become more than the child’s source of academic instruction and socialization—it has become a supplier of nutritional meals and a provider of health services.47 Accordingly, the deprivation suffered by children excluded from school, for any period of time, has increased beyond what the Goss Court anticipated.48 As students’ interests in avoiding unjust removal from the school setting evolve, so too should the protections they receive in the course of exclusion.49

This Note proceeds in four parts. Part I outlines how the creation and growth of the welfare and administrative states in the twentieth century prompted a shift in procedural due-process jurisprudence. Through the 1960s and 1970s, the Supreme Court broadened its understanding of the types of “property” protected by the Due Process Clause, which in turn facilitated the extension of procedural rights to additional classes of individuals, including students in Goss v. Lopez.

Part II examines Goss and its consequences in greater depth, focusing on Goss’s threshold finding that students have a protected property interest in their educations. Under the Court’s flexible conception of due process, that key determination serves as the basis for judicial “reevaluation” of the minimum process required by the Due Process Clause as students’ entitlements expand.50

Part III identifies the functions of the school that have undergone significant growth, in both nature and scope, since Goss was decided. Fifty-state surveys of laws and regulations reflect paradigm shifts in the school’s role in society—it is now the centerpiece of child-welfare programs. Federal nutritional programs have expanded massively since Goss, and most states have enacted laws or promulgated regulations mandating schools to participate in the federal-meal programs and provide children with government-subsidized meals. Moreover, the laws and regulations of many states now also require the provision of formal school health services to students.51 Such programs, guaranteed to at least some students by statute or regulation, create reasonable expectations of entitlements in public-school students that constitute property interests.52 These additional property interests affect students’ interest in avoiding unjust removal from the school environment, and necessitate a reevaluation of whether the procedural safeguards demanded by the Due Process Clause in 1975 continue to satisfy due process today.53

In light of Part III’s analysis of the additional statutory and regulatory entitlements to students that properly constitute property interests falling within the ambit of the Clause, Part IV provides preliminary thoughts on additional procedures, beyond the informal notice-and-hearing requirement from Goss, that students should be afforded when facing exclusionary discipline, subject to the duration of the exclusion, variations in state entitlement schemes, and the scope of benefits to which the specific student is entitled.