Increasing attention is being focused on the issue of student discipline, in part as a result of the school violence incidents that have occurred in recent months. With zero tolerance policies being implemented by many districts, and threats of violence being taken more seriously, an increase in the number of expulsion proceedings has taken place. Additionally, parents are more frequently retaining attorneys and challenging the sufficiency of the grounds for an expulsion, as well as the procedures that were followed by the school district in the course of the disciplinary proceedings. To assure that the manner in which an expulsion hearing is conducted does not provide grounds for a successful court appeal, certain steps and precautions should be followed when investigating the incident that led to the expulsion recommendation, and when preparing for and participating in the expulsion hearing.
Under state law, students who are recommended for expulsion are entitled to a hearing before the board of trustees, or a hearing officer or committee designated by the board. At that hearing, the student and the parents or legal guardian have the right to be represented by legal counsel and "to all other regular legal rights including the right to question all witnesses." While no court has defined the extent of these "regular legal rights," they unquestionably would include the right to review and/or obtain copies of all written documentation, such as student statements taken during the investigation of the misconduct, the right to call witnesses on the student's behalf, and the right to question any witnesses who have information in support of the expulsion recommendation. As a result of these rights, questions often arise concerning the release of the names of students who have given statements in the case and whether these statements may be used in place of live testimony. Understandably, attorneys for students often object to the presentation of student statements at expulsion hearings in place of live testimony, because the attorney does not have the ability to question, or "cross-examine," the student who gave the statement. Furthermore, if the name of the student who gave the statement is withheld, the student being recommended for expulsion does not have the opportunity to offer information that could refute the statement or question the credibility of the student who provided the statement. To avoid and/or be prepared for these issues, certain steps should be taken during the investigation and the collection of student statements.
The investigation into the misconduct usually begins with an administrator talking to each victim and/or eyewitness as soon as possible after the incident occurs. Each victim and witness should be interviewed individually. If appropriate, each victim/witness can be asked to write a statement of their knowledge about the incident being investigated. If such a statement is written, the statement should then be reviewed by the administrator and used to ask further questions of the victim/witness, since it is highly unusual for a student to be able to write out a statement which is as thorough and clear as needed to support an expulsion recommendation. Thus, the administrator should simply use the statement as a starting point to obtain additional information from the victim/witness through the interview process. When the administrator has obtained all the possible who, where, when, what and how type information from the victim/witness, the administrator should then draft a final complete statement for the victim/witness to review for accuracy. Changes can be made if necessary and the student should then sign and date the final statement. Above the student's signature should be a sentence indicating that the student verifies the statement is accurate and complete to the best of the student's recollection and/or knowledge.
Ideally, students or school employees who are victims or key witnesses to an incident should be asked to testify in person at the expulsion hearing. All persons who testify at an expulsion hearing should be asked, prior to their testimony, to affirm that they will provide true and accurate information. Parent/guardian permission also should be obtained before a student is allowed to testify. The decision as to whether to have a student present live testimony will depend in large part on the age of the student and the need to protect the victim/witness from retaliation. A decision to exclude a victim/witness from having to testify must be based on more than mere speculation of retaliation; concrete evidence or genuine fear that retaliation will occur is necessary to withstand a legal challenge. If a victim/witness statement is to be used in place of live testimony, the name of the victim/witness usually should not be deleted from the statement. However, the student victim/witness and the student's parent/guardian should be notified that the statement is to be used as evidence at the expulsion hearing. In limited cases, a decision may be made to remove a student's name and signature from their statement. Such a decision should be made on a case-by-case basis and also be related to actual fear or evidence of the likelihood of retaliation.
The administrator who conducted the investigation and who interviewed the student victim(s)/witness(es) should also be prepared to testify at the hearing as to the scope of the investigation and to the conclusions drawn as a result of the investigation. Specifically, the administrator needs to be able to testify as to the demeanor and credibility of those individuals who provided statements. This is especially necessary if the statement of a victim/witness is to be used in place of live testimony. Additionally, if the administrator who conducted the investigation is not the administrator who made the decision to recommend expulsion, then the decision-making administrator also should testify at the hearing as to the basis of his/her decision.
In addition to witness testimony, other types of evidence may need to be presented at an expulsion hearing. Such evidence may include weapons, alcohol or containers that held alcohol, and stolen property. If such contraband has been confiscated by law enforcement, the law enforcement officer responsible for holding the contraband should be asked to testify at the expulsion hearing concerning the current status of the item in question. Preferably, the officer should bring the item to the expulsion hearing. If the item has been tested by law enforcement for verification of its contents, such as in a controlled substance incident, the officer also should be asked to testify as to the results of that testing and, if possible, present written verification of the testing results.
The number of parents who retain attorneys to challenge expulsions has increased significantly in recent years, and districts should fine tune their discipline investigations and hearing procedures so as to avoid, or be prepared for, legal challenges. Although an expulsion hearing is an administrative rather than a court proceeding, care still must be taken to assure that a student's due process rights are sufficiently met.