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Summary: Student Due Process Rights in Expulsion Hearings

I. NOTICE OF HEARING, RECOMMENDATION TO EXPEL

  • In writing, to parent/guardian and student, 3-10 (working) days in advance of the hearing, including: date, time, and place of hearing;
  • allegation(s) of misconduct (where, when, what) forming the basis for the expulsion recommendation (including past history, if that is a factor or you plan to give board a disciplinary history);
  • policy or rule allegedly (or admittedly) violated (enclosed);
  • right to counsel or representative of their choice at their own expense;
  • right to present witnesses on behalf of the student;
  • list of persons school expects will present testimony or other evidence;
  • right to question the school's witnesses;
  • right to a closed hearing unless it's requested to be open.

II. HEARING PROCEDURES

In addition to the rights outlined in the notice, the student facing expulsion is guaranteed the following additional constitutional rights:

  • the right to a written decision following the hearing ("findings of fact and conclusions of law") about the violation and the proper penalty;
  • the right to a decision solely on the evidence presented at the hearing;
  • the right to an impartial decision maker free of prejudice or bias.
  • the right to a decision based upon reasonably reliable evidence (although hearsay is admissible in expulsion hearings, it's best to have some additional testimony).

Procedures 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 the student facing expulsion:

  • No right to have all witnesses sworn;
  • no subpoena power for compelling witnesses to come forward
  • no free legal assistance
  • no court reporter/stenographer (if good tape recorder is used)
  • no right to confront and cross-examine (or know the identity of) student informants. (But see In re Isaiah Rice,13 DoE App. Dec. 13).

     

III. DELIBERATION SUGGESTIONS:

  • Exercise your discretion. Discuss the evidence of the violation as well as aggravating or mitigating factors that might suggest punishment should be enhanced or reduced.
  • Consider the future of the student as well as the "message" you want to send to students or staff about the misconduct. (Remember, you're probably going to take some heat no matter what you decide.)
  • Make sure procedures have been followed appropriately.
  • The school board makes the policies and approves the rules; therefore, the board has the right to create exceptions to and issue interpretations of its own policies. If application of the existing policy would be unwise or educationally unsound, "suspend" the policy rather than supporting it to a student's detriment.
  • Consider alternatives to expulsion. Remember, your choices are broader than "expel" or "don't expel."