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STUDENT EXPULSION RIGHTS1

I. ADEQUATE NOTICE (To student and parent, by regular mail) 

  • 3-10 working days in advance of hearing (but be careful student isn't out of school > 10 school days before the hearing!)
  • notice states what provision of board policy/student handbook/rule the student is accused of violating AND that expulsion is being recommended. NOTE: If you intend to introduce evidence of the student's disciplinary history so that the board knows what other disciplinary consequences have been imposed for this student, make reference to that information ("including the student's disciplinary history") in the notice.
  • notice gives date, time, and place of hearing
  • notice recites parent/student rights:
  • names of witnesses school expects to give evidence/testimony
  • right to counsel or representation of their choice at their own expense
  • right to cross-examine witnesses against the student
  • right to produce witnesses of their own to testify (no subpoena power)
  • right to copies of documents supplied to board members
  • right to a closed hearing unless an open hearing is specifically requested 

[Note: If parent wants open hearing, most attorneys recommend getting that request in writing so that they understand they are waiving the confidentiality of the student's records.]

II. PROCEDURES AT THE HEARING/AFTER THE HEARING 

  • Student is entitled to a decision by an impartial decision maker. Although no law MAKES a board member recuse (not participate) him/herself if s/he is either prejudiced against the student or biased for the student, the general rule is that she board member should recuse if there is even the appearance of bias or prejudice. Why give the student fodder for appeal?
  • Student/parents are entitled to written "findings of fact and conclusions of law" after the board makes its decision, which is announced in open session. (General advice is not to use student's name in conjunction with actual "expulsion" wording. If motion is "to expel" then use "Student DW" or "Student A." If motion is to "accept the superintendent's recommendation regarding Robin Williams' educational program," you can use names. Preference is the former.)
  • The two parts of the board's decision are comparable to the two phases of judge/jury decisions in criminal matters: the guilt phase and the penalty phase. The "Findings of Fact" should recount the evidence that led the board to believe the student committed the act s/he is accused of ("guilty" or "not guilty"?) A recent State Board of Education decision stated that the Findings of Fact section should summarize the testimony of those whose testimony related to the guilt or innocence of the student. This need not be elaborate, but should be included.
  • The "Conclusions of Law" part of the written decision should then establish what penalty the board has chosen (penalty phase). If an attorney is available to write this document for the board, that would be helpful. But if not, no one is expecting it to be so legalistic that only an attorney knows what it means. Remember, it's the letter to the parents and student letting them know officially what the board decided, why they decided that, and what they voted to do about it. 
  • Deliberations in closed session should focus only on the evidence presented. (One of the guarantees of due process is to have a decision rendered solely on the evidence produced at hearing.) Remember, the closed session is always taped, so if we stray from the evidence to discuss (for example) this student's older brother and what kind of a student he was a couple of years ago, this discussion could come back to haunt the district in the event of an appeal. The Board Secretary would be an excellent person to monitor this and remind the members of the board if they stray from the evidence.
  • A 1996 State Board decision suggested that for long-term expulsions, hearsay evidence alone is insufficient. If a school employee has first-hand knowledge, s/he should testify. If only students have first hand knowledge and they (or their parents) are unwilling to testify to what they know/saw/heard, work with your school attorney on next steps. You may be able to go forward if you make a special finding in the record that you are not requiring student(s) to testify because (either or both) (1) students have stated that they fear reprisal or retaliation from this student or other students if they testify or become known as "narcs," or/and (2) the administration believes that to force students to testify under these circumstances would chill the flow of information from students to administration regarding student misconduct or safety issues in the future.
  • Procedures for expulsions should be fair but need not include the full panoply of rights afforded the accused in a criminal trial. The following have not been found to be "rights" of a student in an expulsion hearing in Iowa:
    • no right to have all witnesses sworn by a person authorized to give oaths
    • no subpoena power to compel witnesses to be present against their will
    • no free legal assistance
    • no court reporter/stenographer (but be sure tape recorder functions and voices can be understood when played back; many schools use court reporters anyway)
    • no right to "confront and cross-examine" (or know the identify of ) student informants (But see In re Isaiah Rice, 13 D.o.E. App. Dec. 13 (1996).) 

III. Other Suggestions/Food for Thought 

  • Use at least one attorney. This person would ideally represent the school board. If two attorneys are available, the second one "represents" the administration and puts on the case for the principal and superintendent. Expulsion hearings are the "capital punishment" of penalties imposed by school boards. In terms of importance, they are not unlike staff termination hearings. Money "saved" by do-it-yourself expulsion hearings could be lost three- or four-fold on appeals and subsequent law suits.
  • Boards should be encouraged to exercise their discretion in reaching a decision. They should discuss, in addition to the evidence that a violation of the rules occurred, aggravating or mitigating circumstances or factors that might suggest punishment should be reduced or enhanced. Remember: The board's choices are broader than "expel" and "don't expel."
    • Consider alternatives to expulsion (e.g., long term suspension with opportunity to continue work for credit; alternative school, etc.).
    • Consider the future of this particular student as well as the "message" sent to students and staff about the misconduct.
    • Boards can "expel" but allow the student to continue his/her education by receiving assignments and turning in work for credit. In essence, the student is "excluded" rather than expelled.
    • Boards can also deny excluded or expelled students the privilege of attending school-sponsored functions (e.g., dances, plays, athletic or other school events, senior class trip, maybe even the graduation ceremony) during the period of expulsion/exclusion. 
  • Although state law is silent on the issue, expulsions are generally believed to be limited to one calendar year (for firearms violations) and two semesters (max.) for non-firearms violations. There is probably no such thing as a "permanent expulsion" in Iowa.
  • If a student is expelled for possession of a dangerous weapon (broader category than "firearms" above), Iowa law requires that the board "prescribe procedures for continued school involvement" for the expelled student and "for the reintegration of the student into the school following the . . . expulsion." This could be as simple as a letter to the student/parents describing the options (depending up on the age of the student) of home schooling, correspondence courses, classes at the community college, or perhaps private school if they could obtain permission to enroll. 2
  • If a student drops out of school after the incident that causes the administration to suspend and recommend expulsion, consult your school attorney for advice. Some believe you could expel the student because s/he was a student at the time the incident occurred. Some believe you would have to "table" the recommendation, in which case it would be reactivated if the student tried to reenroll later. Others think you can take no action because you lack jurisdiction over the student. 
  • Although we do not have an appellate court decision on this point in Iowa, at least one district court has concluded that if the student (if 18) or parent (if the student is not yet 18) requests an OPEN expulsion hearing, the board's deliberations must also be in open session unless the student or parent(s) expressly consent to closed session deliberations. If they do, make sure you have it on tape or in writing. 

 

1 These rights pertain primarily to students not identified as eligible for special education services.

2 Iowa Code section 282.4 (3) says that if a student is under an unfinished suspension or expulsion and tries to attend another school district in Iowa, he or she shall not be permitted to enroll unless and until the board approves. Of course, private schools always have the ability to accept or reject students.