Illinois Appellate Court Overturns Student Expulsion for Failure of District to Offer Student Opportunity to Cross-Examine Witnesses

In a decision that retreats from a line of cases declining to find a right of confrontation and cross-examination in student expulsion hearings, an Illinois appeals court, on August 14, 1998, held that a high school student was denied due process by the admission of the hearsay testimony of key witnesses in his expulsion hearing. Colquitt v. Rich Township High School District, 1998 WL 476734 (Ill. App. 1st Dist. 1998). On January 14, 1997, the Rich Township High School District School Board entered an order expelling Lemont Colquitt from school for three semesters due to gross misconduct, harassment and verbal intimidation. During the expulsion hearing, several signed witness statements regarding the subject altercation were admitted into evidence in lieu of testimony over the objections of Colquitt's attorney. According to the statements, on December 11, 1996, during a basketball game, Colquitt and another gentlemen initiated a verbal altercation with a group of students, brandished guns and threatened to kill the students. In addition to the witness statements, several other witnesses testified regarding different segments of the incident. Based on the evidence presented at the hearing, the Board expelled Colquitt.

Colquitt and his mother appealed the expulsion, alleging among other things that he was denied due process because of the admission of the witness statements at the hearing. The court considered the following factors in determining whether Colquitt was denied due process by the admission of the written statements: 1) the significance of the private interest which would be affected; 2) the risk of erroneous deprivation of that interest through the procedures used; and 3) the significance of fiscal and administrative burdens that the additional or substitute procedural safeguards would entail.

The court first concluded that Colquitt had a legitimate entitlement to a public education which may not be taken away without due process. The court next concluded that the procedures used by the Board were insufficient to guard against the erroneous deprivation of that interest. The court noted that although three independent witnesses observed portions of the incident, none of the accusing witnesses against Colquitt testified at the hearing. As a result, Colquitt was not given the opportunity to cross-examine all witnesses against him. The Board argued that the need for cross-examination in school disciplinary cases was muted since the veracity of a student account was initially evaluated by a school administrator. In addition, because the rules of evidence do not apply to expulsion hearings, the admission of the hearsay statements was not a denial of due process. Rejecting the Board's arguments, the court stated:

Although an expulsion hearing is not a judicial or quasi-judicial proceeding and, therefore, common law rules of evidence need not be transplanted wholesale, certain protections, such as from witnesses "motivated by malice, vindictiveness, intolerance, prejudice, or jealousy," must be maintained.

Colquitt at 7. The court noted that the opportunity for cross-examination was also imperative in this case because the written statements were conflicting and the result of the hearing was directly linked to the credibility of the accusing witnesses whose written statements were admitted into evidence.

Lastly, the Board argued that failure to protect student-witnesses' anonymity would create further violence, stigmatize the student witnesses and deter those witnesses from voluntarily providing information. Although the court acknowledged that the risk of retaliation may justify a school board's reliance on written witness statements in certain cases, the Board had not produced sufficient evidence that any of the student-witnesses were threatened or in danger if they testified. The court concluded that in expulsion hearings, the risk of error from the lack of adversarial testing of witnesses through cross-examination outweighed the countervailing governmental interest favoring the admission of hearsay statements.

In another case addressing a student's right to cross-examine accusing witnesses, Witvoet v. Herscher Community Unit School District No. 2, Case No. 97-2243 (1998), a federal district court reached an opposite conclusion. In Witvoet, the court concluded that the plaintiff had no right under the procedural due process clause of the Fourteenth Amendment to cross-examine his accuser during the course of his expulsion hearing. The plaintiff had been expelled from school following an incident with a fellow student. The Board ordered the expulsion after a hearing at which Witvoet's accuser did not testify, however, hearsay statements attributed to him were admitted into evidence. In concluding that the plaintiff had no right to cross-examine his accuser, the court considered the same factors considered by the Colquitt court: 1) the consequences of error to the person seeking the procedure; 2) the risk of error if it is withheld; and 3) the cost of the additional procedure sought. Citing a line of cases that declined to recognize a right to confrontation and cross-examination in the student disciplinary context, the court concluded that the plaintiff had no right to confront his accuser or have his attorney cross-examine him during the expulsion hearing. The Witvoet case was handled by Everett E. Nicholas Jr., partner at RSNL&T.

It is difficult, if not impossible, to reconcile these two conflicting decisions. We believe that the Witvoet court correctly followed precedent that students have no right to confront or cross-examine witnesses in student discipline hearings. However, the Appellate Court's decision in Colquitt appears to provide that when the outcome of the hearing is directly dependent upon the credibility of witnesses whom have presented conflicting written statements, due process mandates an opportunity for cross-examination. The language implies that when the hearing is not directly dependent upon such witnesses credibility, i.e. other witnesses or administrators with direct knowledge of the event have testified, or the student has admitted to the conduct alleged, the right to cross-examination does not exist. Additionally, if districts do not want to present such witnesses because of retaliation or risk of harm, Colquitt indicates that there needs to be some evidence presented that the witnesses "were threatened or in danger if they testified." Clearly, districts need to carefully examine the facts of each student expulsion case in determining whether or not witnesses need to testify at the expulsion hearing.