Introduction
Substantive due process
The substantive due process enforces the substantive rights of a person. The individual rights include the rights which are included in the Bill of Rights. The substantive due process requires that the governing authority to follow the required due process before depriving the person his fundamental rights. The fundamental rights of a person include the freedom of speech, freedom of movement and the right to exercise religion. Law courts ensure that the fundamental constitutional rights of a person are not denied to the respective individuals .
The Supreme Court developed a broader definition of the substantive due process. The court not only refers to the substantive due process as the protection of individual rights but also requires the right to process whenever the state imposes a punishment on a person. There are three types of rights, which the court focuses on under the substantive due process. The court focuses the right to take part in the political process of the country. The political process involves the right to vote, association and right to speech. The court also focuses on the rights of the minority. The minority is the group of citizens who do not have a lot of influence on any activity or process. Finally, the court focuses on the rights which are outlined in the Eighth Amendments, in the constitution of the United States. The Eighth Amendment is an example of Bill of Rights. The substantive due processes are mainly applicable in academic cases, in universities. This is because the evaluation of the academic cases requires subjective assessments of professors. Lecturers and professors are better equipped to handle academic cases than judges .
Procedural due process
Procedural due process ensures that there is fundamental justice in all official and administrative proceedings. The procedural due process provides protection to individuals’ rights. It provides restrictions and requirements the state should follow during the proceedings against a person. The due process requires government or state officials to apply fairness and suitable measures when limiting the constitutional rights of an individual. In the education sector, procedural due process is applicable in disciplinary cases and staff or faculty dismissal. This includes evaluating whether the correct procedure has been followed in making judgments regarding the cases. The correct procedure in such a case would involve giving a notice of dismissal to the staff, providing an opportunity for the person to present his case and an opportunity for the person to appeal the judgment .
The procedural due process may be applied in public institutions of higher education. The due process in the institutions involves two main stages. An examination of the process followed in making decisions regarding the discipline made to the students and faculty staff is the first stage. The second stage involves analysis of the process due to individuals in case their rights were implicated by the university officials. Cases regarding disciplinary contexts such as expulsions and suspensions are considered are considered more formal than academic cases. The disciplinary cases require procedural due process .
Similarities
The main similarity between the substantive due process and the procedural due process is that they both protect and enforce the right of an individual. The processes are useful in regulating and maintaining the relationship between the students and school administration in the institutions of high learning. Both the substantive due process and the procedural due process guarantee fairness among people through the use of constitution. The two processes derive their powers from the constitution of the USA. In addition, both the procedural due process and the substantive due process require the interpretation of the court. The court would help to determine the application of the two types of due process in a particular case. The satisfaction of the requirements of the 14th amendments requires the fulfillment of the conditions of both substantive and procedural due process .
Differences
There are significant differences between the substantive due process and the procedural due process. The procedural due process is the right to be heard and listened, and reasonable fairness provided. On the other hand, the substantive due process is pertinent to the main issue of the decision. In an educational setting, a student should understand the expected behavior. The rules provided should be reasonable and practical. The procedural due process relies on the court judgment in decision making regarding a case. The substantive due process requires special knowledge from an expert in decision making. Academic cases in a school setting would require the intervention of the lecturers and professors. Disciplinary cases and suspension require the intervention of the disciplinary committee.
Example of substantive due process
15 University students who had attended a rugby match were expelled for one month from the campus due to yelling to the referee due to a faulty mistake. The rest of the school started yelling, and it resulted into a fight among the students. Following a hearing, the expulsion was upheld. The students argued that their rights’ regarding the substantive due process were violated. Their argument was that the expulsion was based on racial discrimination because their opponents were predominantly white and they were predominantly black.
Example of procedural due process
Education programs do not allow criminal activities and possession of weapons is illegal. In addition, gang related clothes are prohibited. In Texas, a student wore a red bandana. The class teacher requested the student to remove the bandana while in class. The student declined and was sent to the principal. During the case proceedings, a knife fell from where the student was. The student was suspended for 10 days. The case shows violation of the procedural due process since the student was not allowed to address the situation.
References
Alexander, K. (2005). American Public School Law: Manual. South Melbourne: Cengage Learning.
Frank B. Cross, R. L. (2011). The Legal Environment of Business: Text and Cases : Ethical, Regulatory, Global, and Corporate Issues. South Melbourne: Cengage Learning.
Gabriel Jackson Chin, V. C. (2001). Immigration and the Constitution: Shark infested waters: procedural due process in constitutional immigration law. Boston: Garland Publishing.
Jennings, M. M. (2010). Business: Its Legal, Ethical, and Global Environment. South Melbourne: Cengage Learning.
Orth, J. V. (2003). Due process of law: a brief history. Lawrence: University Press of Kansas.
Roger LeRoy Miller, G. A. (2009). Fundamentals of Business Law: Excerpted Cases. South Melbourne: Cengage Learning.
