Thursday, February 18, 2021

School Expulsion Hearing Evidence Q & A

By Michelle Ball, California Education Attorney for Students since 1995

Many parents envision expulsion hearings are mini-trials where their child has full rights to object and exclude things, like in regular court.  However, public school expulsion hearings, as hearings governed by administrative law (the law relating to government agencies), have different rules from regular courts.  There are some parameters for the expulsion hearing process, but what is allowed can be quite confusing, especially to a parent on their own.  Here are some basics on the evidence at expulsion hearings.


Do regular rules of "evidence" for court trials apply in school expulsion hearings?


No.


Am I entitled to all evidence the school has against my child before the hearing?  


Parents are entitled to all evidence the school will use at the hearing.  Usually the school or district will provide the evidence to the family at the suspension extension meeting, but if not, it can be requested.


How do I get the expulsion hearing evidence from the school if it was not given to me?  


Simply request it, preferably in writing and via email.


What evidence is needed to expel my child?   


The school should prove the matter with substantial evidence that the student actually committed the acts alleged and they breach the codes.


What evidence can the school submit at the hearing?


They can submit anything they gathered, including statements from students about the allegations, even if the student who gave the statement or testimony does not attend the hearing.  They can also present witnesses or testimony to support the allegations.


What is hearsay evidence for purposes of an expulsion hearing?  


In very rudimentary terms, hearsay evidence is evidence offered to prove something happened from someone not directly testifying or who was not an actual witness to what happened.  For example, sometimes schools submit statements where students write rumors- the statement and the contents are hearsay.  [Please note: hearsay is a highly complicated subject and this is not a complete discussion of hearsay or its exceptions]


What if a student did see something happen, but does not testify at an expulsion hearing?  Is their written statement hearsay?


Yes, usually.  A written statement, when the student does not present themselves for questioning is typically hearsay.  There is an exception when a hearing panel rules that a student would be "subject to an unreasonable risk of harm," were they to testify and the panel can decide to accept their written statement instead (see California Education Code 48918(i)(3)) and it then will not be considered hearsay.  


A statement from an accused person, where they admit they "did it," is considered an admission and is acceptable under a hearsay exception (see California Evidence Code section 1220).


Can a student be expelled based on hearsay alone?  


No.  This is specifically prohibited in California Education Code section 48918(f)(2).  


Why are we talking about hearsay and what does it matter to the student being expelled?


It matters because if a student did not admit the allegations, and there was only hearsay at the hearing, the expulsion may be overturned on an appeal to the county board of education.


What evidence is presented at most school hearings?  


A school or the district will usually present a packet of information, including written statements, testimony from an administrator (like the vice principal or principal) and may present an eye witness to the alleged wrong.  Districts vary in how well they conduct hearings.


What can a parent submit at an expulsion hearing?


Paper evidence, witnesses, character witnesses, letters supporting the student, pictures, videos or any other evidence they want which is relevant.  They may also submit a legal brief (paper with the law and facts) or arguments supporting the student's innocence.


What can a parent say at the hearing?


The parent or their attorney or a nonattorney advisor can usually do an opening and closing statement, and can question witnesses.  


Can a Parent be a witness?


Yes, if the parent saw the act happen, they can testify as a direct witness.  If not, a parent may be a character witness.  


Can a parent ask a school to help them force witnesses to testify at the hearing (aka subpoena them)? 


Yes.  A parent can ask the school board to issue subpoenas to witnesses who actually saw what happened, aka percipient witnesses (see California Education Code 48918(i)(1)).


If there is an evidence issue at hearing, who rules?


The person or group overseeing the proceeding (for example the expulsion panel, board of education or hearing officer) should review the question and make a ruling.


Can a parent record an expulsion hearing?


Not without permission, which is usually denied.  The school district will make an official record, with either a recording or a court reporter.


Best,

 

Michelle Ball

Education Law Attorney 

 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting.  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.