Lesson 2: What's the difference between procedural and substantive due process?

A lesson plan for secondary teachers on the constitutional requirement for "due process of law."*

*This case was chosen by staff within the judicial branch as a useful tool to teach an interesting aspect of the law. Its selection has no bearing on how the case will ultimately be decided. Since the members of the court did not participate in the preparation of the lesson plan, the issues raised in it will not necessarily be addressed in the oral argument.


This lesson is based on the case of Rene v. Reed.  A case summary, the appellant's (Rene's) petition to transfer, the appellee's (Reed's) opposition to the petition to transfer, the Court of Appeals opinion and the one-hour webcast of the January 30, 2002 oral argument before the Indiana Supreme Court are all available on-line at http://www.in.gov/judiciary/citc/2586.htm.

A separate lesson, giving an overview of the structure of Indiana's court system, is also available to provide students with general information about how Indiana courts work.  It can be found on the "Courts in the Classroom" homepage.

Learning Objectives:

At the end of this lesson students should be able to:

  1. Discuss and differentiate between procedural and substantive due process;
  2. Identify and discuss due process issues in print and electronic media; and
  3. Identify and discuss Indiana, or national, cases involving students and due process issues.

General Resources:

Due Process Related Resources:

  • A University of Missouri-Kansas City website contains a brief discussion of due process as it pertains to student issues, and includes links to key student-related Supreme Court decisions.
  • The U.S. Department of Education, Office for Civil Rights, has archived a document that discusses some of the legal issues surrounding student testing.  Chapter 2, Legal Principles, and the Glossary of Legal Terms are particularly helpful.

Learning Activities:

Note:  If you completed Lesson 1 of this unit, you might modify Activity 1 to act as a review of key terms already covered.

  1. In a brainstorming session (or any similar type activity), ask students to define the legal term "due process."   If they have trouble with this (which is likely) ask them to use the phrase in a sentence, or to give an example of "due process" in action.  Following this discussion, ask students to look up the definition of "due process."  A legal dictionary like the one at http://www.FindLaw.com/ might be a good place to start in addition to a textbook, a conventional dictionary, an encyclopedia or one of the on-line resources provided above.
  2. Using local newspapers (many papers have companion websites as well as their print editions), national news magazines such as Time and Newsweek, or electronic media sites such as http://www.cnn.com/ and http://www.msnbc.com/ ask students to search for articles relating to due process. Once several articles have been located, have students read them carefully looking for mention of due process.  They should find references to claims about violations of both procedural and substantive due process rights.  How do the two differ?
  3. Send your students back to whatever source you used to define due process initially (see Activity 1 above) to look for a detailed discussion of the difference between substantive and procedural due process.  Ask students to create hypothetical situations within their own school or community illustrating due process procedures.   A student or employee handbook is a good resource. The American Civil Liberty's Union has a wide-ranging student section on their web page. 
  4. In Rene v. Reed, Meghan Rene and other disabled Indiana students argue that both their procedural and substantive due process rights were violated in regard to the Indiana ISTEP graduation exam.  Ask your students to read the petition-to-transfer briefs from both Rene and Reed. The action was brought against Dr. Suellen Reed in her capacity as the Indiana Superintendent of Public Instruction.   Ask the students to summarize Rene's arguments about why her rights were violated and Reed's arguments about why they were not.
    • Make sure your students see that there are two separate arguments being made:
    • The amount of notice given about the new graduation requirements, and
    • The different treatment of disabled versus non-disabled students.

How did the Court of Appeals respond to the due process arguments in their published opinion?

  1. In another student-related case heard by the Indiana Court of Appeals, Hines v. Caston School Corp, a male elementary school student who was not allowed to wear an earring to school argued that his due process rights were being violated because the earring restriction did not apply to female students.

    Ask your class to read the Court of Appeals opinion in Hines. In this case the court of appeals panel did not agree in their interpretation of the alleged due process violation. There is, therefore, both a majority and a dissenting opinion. As a class discuss the court's differences on this case, and compare these arguments with those made in Reed.

For Further Study

  1. Student's due process rights have been discussed by U.S. Supreme Court is several prominent cases. While the Court acknowledges that students have certain protected rights within a school setting, it has held that those rights do have some limitations.
  • Divide your class into several groups.  Assign one group to look for U.S. Supreme Court cases involving student's due process rights.  The University of Missouri site is quite helpful for locating national cases.
  • In Rene the Court of Appeals references several similar cases from states around the nation.  Assign small groups of students to gather information from opinions in other states on this issue. 

    Some suggestions:
    IllinoisBrookhart v. Illinois State Bd. Of Educ. 697 F. 2d 179 (5th Cir. 1981)
    Florida: Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981)
    Texas: Crump v. Gilmer Indep. Sch. Dist., 797 F. Supp. 552 (ED Tex. 1992);
    New York:  Board of Educ. v. Ambach, 458 N.Y.S.2d 680, (N.Y. App. Div. 1982)

    *These cases can be researched using a search engine such as http://www.google.com/.  Simply search using the case name or citation enclosed by quotation marks (ex:  "697 F. 2d 179").
  1. Have students' display/discuss the similarities and differences found in the cases they read from the U.S. Supreme Court, the Rene opinion, and those from other state courts.  Provide each group with a piece of poster board, an overhead transparency, or a section of a display board on which to present their findings.
  2. Invite a speaker to come to your class and discuss due process and related topics.  Your local bar association or an area chapter of the American Civil Liberties Union (ACLU) might have a list of potential speakers.

Related Indiana Social Studies Standards

U.S. Government.1.13:  Examine fundamental documents in the American political tradition..., the United States Constitution,...the Indiana Constitutions of 1816 and 1851 to identify key ideas regarding the nature of limited government and the protection of individual rights.

U.S. Government.3.15: Compare core documents associated with the protection of individual rights, including the Northwest Ordinance, the Bill of Rights, the Fourteenth Amendment to the United States Constitution, and Article I of the Indiana Constitution.

U.S. Government.4.11: Use a variety of information sources, including electronic media, to gather information about the impact of American ides about democracy and individual rights in other areas of the world.

This lesson plan was written by Elizabeth R. Osborn, Special Assistant to the Chief Justice for Court History and Public Education. If you have any questions about this lesson, or ORAL ARGUMENTS ONLINE, feel free to contact her at (317) 233-8682 or elizabeth.osborn@courts.IN.gov