Teenage Rebels and the Demand for Due Process

• Pages: 27-69
• Date: 01 January 2024
• Published date: 01 January 2024
• Author: Sarah Medina Camiscoli
• Subject Matter: Derecho Civil

Teenage Rebels and the Demand for Due Process

SARAH MEDINA CAMISCOLI*

ABSTRACT

In the 1975 case of Goss v. Lopez, high school students who mobilized for Black

Power and an end to the Vietnam War won the right to procedural protections that

expanded the due process revolution in education. In a dramatic shift in constitutional

law, the Supreme Court sided with marginalized students who mobilized together and

recognized their property interests under statutory entitlements to compulsory public edu-

cation. By resisting policies that deprived them of their education in a divisive political

climate, these student plaintiffs reimagined a radical democratic system where students

shape the laws that govern their civic life and education.

Today, conservative parents and lawmakers of the Make America Great Again

(“MAGA”) movement have targeted the rights of marginalized youth by dismantling

substantive due process, weaponizing bans on public school resources, and suppressing

student resistance. This MAGA movement—one that aims to “Make America” as it was

before the due process revolution—normalizes education without constitutional protec-

tions for students and a return to legal norms that once oppressed young people as wards

of parents, enslavers, or the state. While legal scholars have studied these erosive threats to

democracy and substantive due process, they have not yet considered the derailment of

procedural due process and how mobilized students might help forge a path forward.

In response, this Article makes two contributions. First, it provides a descriptive

account of the key historic contributions of student movements that prefigured and pro-

tected student entitlements to public education long before the Supreme Court decided

Goss. Second, the piece wields the legal concepts of property interests and procedural due

process to create legally cognizable claims that support students’ demands for more due

process protections against bans in public education. In doing so, the Article demon-

strates how student movements have been, and continue to be, important accountability

constituencies in education law, and why formally trained legal professionals should

write and work alongside them to realize the Constitution’s unfulfilled promises.

* Professor Medina Camiscoli works as an Assistant Professor of Constitutional Law, Education Law,

Movement Law, and Critical Legal Studies at Rutgers Law School in Newark. She also practices law as the

Founding Co-Executive Director of the Peer Defense Project—a youth movement lawyering shop that builds

legal education, networks, and tools for mobilized and marginalized youth. Thank you to Professor Gerald

Torres for his mentorship in my study of movement law and demosprudence. Thank you to Students

Engaged in Advancing Texas (SEAT) whose insight and resistance for youth power under law inspired this ar-

ticle. Thank you to Professor Sarah Swann and the Rutgers Faculty Colloquium for their feedback and sup-

port. Thank you to Community Review Board Members and SEAT leaders, Da’Taeveyon Daniels and

Cameron Samuels for their insight, trust, and collaborative review process. Thank you to Ash Barcus, Anna

Griffith, Adaneka Witter Judge, Ayo Bowman, Elia Jefferson-Gonzalez, and Cynthia Mendoza for their won-

derful work as my Research Assistants and thought partners. © 2025, Sarah Medina Camiscoli.

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

I. MOVEMENT LAW AS METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . 37

II. THE POWER OF STUDENT DEMOSPRUDENCE AND PREFIGURATION FOR

MULTIPLY MARGINALIZED LEARNERS . . . . . . . . . . . . . . . . . . . . . . . . 38

A. Prefiguring Educational Entitlements Under Sex-Based Coverture . 39

B. Learners Subverting Black Literacy Bans Under Enslavement . . . . 41

C. Resisting Deprivation Under Cultural Genocide . . . . . . . . . . . . . 46

D. Marginalized Learners Resist Educational Deprivation and

Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

III. STUDENTS DEMANDING DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . 54

A. Situating Schoolhouse Property within the Due Process Revolution . 55

B. Wielding the Due Process Revolution to Block Bans and Defend

Democracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

1. Entitlements For Trans/Gender Expansive Youth in School

Facilities ........................................... 58

a. Statutory entitlement? . . . . . . . . . . . . . . . . . . . . . 59

b. A brutal need? . . . . . . . . . . . . . . . . . . . . . . . . . . 59

c. Likelihood of erroneous deprivation? . . . . . . . . . . . . 61

2. Entitlements to Gender Affirming School Based Health

Services........ .................................... 62

a. Statutory entitlement? . . . . . . . . . . . . . . . . . . . . . 62

b. A brutal need? . . . . . . . . . . . . . . . . . . . . . . . . . . 63

c. Likelihood of erroneous deprivation? . . . . . . . . . . . . 64

3. Entitlements for Multiply Marginalized Youth in School

Libraries ........................................... 65

a. Statutory entitlement? . . . . . . . . . . . . . . . . . . . . . 65

b. A brutal need? . . . . . . . . . . . . . . . . . . . . . . . . . . 65

c. Likelihood of erroneous deprivation? . . . . . . . . . . . . 67

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

28 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 16:27

INTRODUCTION

“The actions of one person alone, challenging a book in a school library, should

not burden and restrict the education of 90,000 students in my district without

due process.”

—Cameron Samuels, Students Engaged in Advancing Texas (SEAT)

1

Book Bans: Examining How Censorship Limits Liberty and Literature: Before the S. Comm. on the

Judiciary, 118th Cong. (2023) (statement of Cameron J. Samuels, Co-Founder, Students Engaged in

Advancing Texas) [hereinafter Samuels Testimony]; see also Emily Bond, Texas Book Ban Law is the Target of

Youth Organizations like SEAT, Booksellers, TEEN VOGUE (Apr. 23, 2024), https://www.teenvogue.com/

story/texas-book-ban-law-seat#:�:text=Youth%20activists%20such%20as%20Cameron,or%20challenged

%20by%20the%20state. (reporting on how SEAT organized against the Restricting Explicit and Adult-

Designated Educational Resources (READER) Act in Texas and has successfully “got books back on

shelves. . . [and] websites unblocked.”).

“That legislators can appropriate law to banish critiques of law should rattle every

last one of us.. .[This] is not a healthy feature of a robust democracy.”

—Kimberlé W. Crenshaw

2

Historically, legal scholars, students, and educational justice practitioners have

drawn on Goss v. Lopez to protect both students’ public education property interests

3

and their right to procedural due process

4

in school suspensions.

5

Recently, scholars

have debated the pitfalls of expanding property interests in education as students face

unrelenting attacks on public education.

6

However, legal scholars and advocates have not

yet drawn inspiration from Goss’s profound student activism story behind the “due

1.

2. Kimberlé W. Crenshaw, This Is Not a Drill: The War Against Anti Racist Teaching in America, 68 UCLA

L. REV. 1702, 1717–18 (2022).

3. See, e.g., Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course,

are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as state law—rules or understandings that

secure certain benefits and that support claims of entitlement to those benefits.”).

4. Id. at 576 (“The Fourteenth Amendment’s procedural protection of property is a safeguard of the secu-

rity of interests that a person has already acquired in specific benefits. These interests—property interests—

may take many forms.”).

5. Goss v. Lopez, 419 U.S. 565, 573–76 (1975) (holding that resident youth gain property entitlements

when states pass laws that guarantee a free public education or compel students to attend school and that

school officials must provide “some kind” of process before that property interest is interfered with); see also

Matthew Patrick Shaw, The Public Right to Education, 89 UNIV. CHI. L. REV. 1179, 1207 (2022) (“A due

process discussion of the educational property interest begins with Goss v. Lopez. In Goss, all nine Justices

agreed that the State of Ohio created a property interest in public education—through the combination of

laws that provide public education.. .and laws that compel all eligible children to attend school—that is pro-

tected by due process.”).

6. See Shaw, supra note 5, at 1207; see also LaToya Baldwin Clark, Stealing Education, 68 UCLA L. REV.

566, 573–75 (2022) (“Parents purportedly ‘steal’ an education when they falsify a nonresident child’s address

to be able to benefit from a school district’s schools that are designated only for resident children. . . school

district officials justify stealing education laws by conceptualizing public education as private community

property.”); Rachel F. Moran, Personhood, Property, and Public Education: The Case of Plyler v. Doe, 123

COLUM. L. REV. 1271, 1275 (2023) (“Because neoliberalism mainly treats education as an individual entitle-

ment, that is, a private rather than a public good, economic considerations overshadow other conceptions of a

right to learn, deepening inequality in access to schooling.”).

2024] TEENAGE REBELS AND THE DEMAND FOR DUE PROCESS 29