Monday, January 23, 2012

School Expulsion Hearings: Parents Have The Right To Request Witnesses Be Subpoenaed

By Michelle Ball, California Education Attorney for Students since 1995

School expulsions seem to be everywhere now.  Expulsion hearings are very important, and parents need to know their rights.  One of these rights is the right to request that subpoenas be issued to potential witnesses when a school expulsion is pending.

The right to subpoena witnesses
 (order to appear before a body or face consequences)  is an important part of our judicial system.  Courts and other agencies must be able to hear the complete case, listen to all the evidence, and see if the "story" turns out to be true.  This subpoena right also exists in the context of school expulsion hearings, but the subpoena power rests with the school district in question.

California Education Code section 48918(i)(1) states as follows:
"Before the hearing has commenced, the governing board may
issue subpoenas at the request of either the superintendent of
schools or the superintendent's designee or the pupil, for the
personal appearance of percipient witnesses at the hearing. After the
hearing has commenced, the governing board or the hearing officer or
administrative panel may, upon request of either the county
superintendent of schools or the superintendent's designee or the
pupil, issue subpoenas..."

What this means is that parents may request that the district involved issue subpoenas for any actual witnesses who may have seen what occurred.  So, if Johnny is alleged to have stolen money and there was a witness, parents may ask that that person be ordered to testify at the hearing.  Often districts do NOT subpoena witnesses unless a parent asks them to.  Rather, districts instead attempt to get a child expelled based on sworn statements alone with no direct testimony.  This could cause trouble for a district on appeal if there is no confession.

If there is an important witness who will help the child's case, parents cannot expect the district involved to subpoena that person.  In fact, why would the district want to subpoena them as it would ruin their case?!  As such, parents need to actually request that witnesses be subpoenaed by the district in advance.  If the district will not issue the subpoenas, well that is another story for another day and a potential appeal to the board looms.  Chances are that most districts will subpoena witnesses when this is requested by parents.

This all may be confusing, so don't go it alone.  Parents, if you don't know your rights, bring someone in who does...

Michelle Ball
Education Law Attorney
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
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