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Effective Advocacy in School Discipline Proceedings

By Julie Waterstone

This article was based in part on Tips for Representing a Student in an Expulsion Hearing in the Legal Services for Children Suspension-Expulsion Manual.

A few months before he was set to graduate, 17-year-old Robert Jones was facing expulsion from high school for allegedly arranging a sale of marijuana. Academically, he was not the best student, but he certainly was not the worst. He had ditched a few periods here and there but had no prior disciplinary incidents. In the pre-expulsion meeting, the school made it clear to him and his legal guardian that this was a zero-tolerance offense for which he would be expelled. But Robert was not expelled. In fact, Robert graduated from high school and plans to attend community college. How?

Preparation was the key to Robert's case being successful. In school expulsion cases, like any other court proceeding, it is important to exercise the full range of trial skills. This begins from the moment you accept the representation. What is the next step?

Review the Records
By law, you are entitled to all documents that will be used at the expulsion hearing. Once you accept the case, you should send a letter to the school district requesting these documents, which are commonly referred to as the expulsion packet. Be sure to send a release from your client along with your request.

In addition to the expulsion packet, it is a good idea to get the student's cumulative file from the school that the student was attending. You should send a letter to the school requesting these documents. Again, be sure to include a release along with your request.

If the police interviewed your client, you should get a copy of the police report, if possible. The school district or the local police station will be in the best position to provide the report to you.

Once you have received these documents, you should review them all carefully. With regard to the expulsion packet, pay particular attention to the witness statements. Look out for any inconsistent statements. What is the date on the witness statements? Does it appear that any of these statements were written by someone other than a student? For example, did an adult write the statement? And, examine the notice of the expulsion hearing. Does the school district clearly set out the charges against the student?

Also, carefully examine the student's cumulative education records. You should look to see whether the student has any prior disciplinary history. Look at the student's grades. Was there a change in grades at any point? Was there a pattern of behavior that led to this incident? If there were prior behavior incidents, try to ascertain the school's response. Did the school ever evaluate the student for special education? Was the student made eligible? Why or why not?

The documents can provide a lot of useful information for you to use at the expulsion hearing. In Robert's case, the documents illustrated that Robert had been receiving good grades. But as school demands increased, his grades dropped. Around the time that there was a change in his grades, there was actually a letter in his file from his guardian requesting that he be evaluated for special education. Yet, nothing happened as a result of that letter.

After you review the documents, the next step is to meet with your client.

Interviewing the Client
You should first discuss your client's version of the incident. Ask your client what he or she told school administrators or police officers about the incident. Be sure to find out whether your client made a written statement.

If it is not clear from the school records, find out whether the student is receiving special education services or accommodations under Section 504. If the student is supposed to receive these services, try to find out whether the student was actually receiving the services to which he or she was entitled. Did the school hold a manifestation determination IEP? If you are not familiar with special education, you should consult with an attorney who has expertise in this area because students with disabilities are entitled to special protections.

One important issue that you may wish to raise at the hearing is the investigation conducted by the school. Discuss this thoroughly with your client. You want to know who was present during the incident. Go back through the expulsion packet to check whether there is a statement from everyone who witnessed the incident. If a witness statement was not included, you want to know why. At the hearing, you will want to find out whether that student was questioned. If so, where is that student's statement?

Another important issue may be the process that was followed by the school. You need to be familiar with the due process protections provided by your state. In California, for example, a student is afforded the opportunity to present their side of the story at a pre-expulsion meeting with their parent present. Be sure to ask your client whether the school administrator met with him or her prior to recommending expulsion. Was your client able to speak at the pre-expulsion meeting? Sometimes school administrators will tell the student why he or she is being recommended for expulsion but will not give the him or her a meaningful opportunity to participate.

You should also ask the student for any other witnesses that could be helpful to the case. Find out whether your client knows if the witnesses would be willing to testify on his or her behalf and, if so, how to contact those witnesses.

Although you have the student's school records, be sure to discuss you're the student's past history with directly with him or her. You will want to find out whether this student had any prior involvement with law enforcement. You want to know whether this student has ever been in trouble at school before. If so, how did the school handle that incident? Did the school try to help the student improve his or her behavior in any way? This information may be useful if your state has a requirement that, for certain types of offenses (usually those that are not considered zero tolerance), the school district must show that they have tried to correct the behavior, but were unable to do so. And thus, expulsion would be the only option.

You will also want to find out what positive things can be said about the student. Does the student volunteer anywhere, do community service, or mentor other students? Is the student actively involved with a religious organization? If possible, you should try to get letters of support for the student. Or better yet, bring a character witness to the hearing to testify about the student. It can be helpful to ask the student to prepare a statement about why he or she wants to go back to school and about his or her goals.

The Format of the Hearing
Before going to the hearing, try to find out what the format is going to be like. Every jurisdiction will have different rules governing who will hear the matter. In many jurisdictions, expulsion hearings are heard by an administrative panel. The hearing may also be heard by the school board or an appointed hearing officer. The panel may be comprised of administrators from schools within the district, but under no circumstance should the panel include anyone from the school attempting to expel your client.

Regardless of whom presides over the hearing, the proceeding must be taped. In the event that you need to appeal your case, a transcript of the proceeding will be critical.

The level of formality will vary from jurisdiction to jurisdiction. Some school districts may follow a formal structure where the hearing is conducted like an actual trial, where you will make an opening statement, present your case through witness testimony, have the opportunity to cross-examine the school district's witnesses, and make a closing statement. Other school districts may conduct the hearing more like a meeting where the parties are simply discussing what occurred.

Whether the hearing is formal or informal, you should be prepared to address some key issues such as procedural violations, problems with the investigation, inconsistent witness statements, and evidentiary issues.

Procedural Violations
To be able to adequately address whether any procedural violations occurred, you need to be intimately familiar with the procedural protections afforded to students through your state's education code. Depending on the laws in your state, some potential procedural violations may include: whether the district conducted a pre-expulsion meeting with the student, whether your client had an opportunity to tell his or her side of the story before being recommended for expulsion, whether the student's parent was present during the pre-expulsion meeting, whether the student was promised anything in exchange for his or her statement, or whether the notice recommending expulsion adequately set forth the charges against the student.

If there were any procedural violations, you need to raise them at the hearing. You can do this in several ways. In your opening statement, through a direct examination of the student, through a direct examination of the student's parent, and through your cross-examination of the school administrator. If there were any procedural violations, you should argue that the expulsion is not valid and that the student must return to his or her school immediately.

If the student receives special education services or should receive such services, it is best to raise that with the school district prior to the expulsion hearing. If the school failed to identify the student as someone in need of services or failed to provide the appropriate services, the expulsion hearing should not go forward. If you try to raise these issues at the hearing, the panel may not know what to do with the information, or could tell you that those issues are separate and apart from the expulsion hearing. If you have raised this issue with the school district and they have ignored you, raise it at the expulsion hearing to preserve the record. But plan to file for due process against the district or, if you are not comfortable doing this on your own, find counsel who practices in special education and ask for assistance. This is critical for the success of the student.

Attacking the School's Investigation
Another key issue to address at the hearing will be whether the school failed to appropriately investigate the incident. Schools can fail to interview key witnesses that could help your client. Or, a school will only interview those witnesses that have reason to point the finger at someone else (perhaps that witness actually did something that he or she should not have done). The school may interview a witness but fail to get a statement. Another possible scenario is that the school interviewed a witness, obtained a statement, but now that witness's statement disappeared. An effective way to deal with these issues is through your cross-examination of the school administrator who conducted the investigation. It may be that there is no good explanation for the school's failure to conduct an adequate investigation. This provides a reason to argue that expulsion would be improper, and the student should be allowed to return to his or her school.

You may also find that there are witness statements that are not consistent with one another. This can be tricky to deal with because the school district does not always bring every student witness to the hearing (sometimes they may not even bring any student witnesses to testify). In either case, you should argue that their failure to bring these necessary witnesses is a good reason not to expel the student. The school's failure to bring necessary witnesses denies the student due process as he or she will not have the opportunity to cross-examine the testimony against him or her. If your client is expelled, this is a ground on which you can appeal.

You may also find that a school administrator testifies that a witness implicated the student, but that the witness's statement does not even mention the student. You want to be sure to bring out any inadequacies in the school's investigation of the incident through your cross-examination of the school administrator.

Evidentiary Concerns
Before you go to the hearing, you need to know the evidentiary standard that applies in your jurisdiction. In California, a school district may expel if there is substantial and direct evidence; hearsay evidence is allowed but cannot be the sole basis for a decision to expel. As stated above, school districts often do not bring student witnesses to the expulsion hearings. So, if the school district is only relying on a witness statement, or a school administrator testifying about what a student witness said, you would have strong hearsay objections. Be prepared to argue that the school district needs to bring the witnesses to the hearing to allow the student the opportunity to cross-examine the evidence. If the student witness will not testify, the school district should be prepared to show that testifying would expose that student to an unreasonable risk of psychological or physical harm. In the absence of harm that can be proven at the hearing, the student witness should be there. Failure to bring that person results in a deprivation of due process for the student and is yet another ground for an appeal.

In some jurisdictions, technical rules of evidence do not apply. The panel will often remind you that you do not need to make objections because the rules of evidence do not apply, and there is no one to rule on the objections. Remember though, you are creating a record. If you need to appeal your case, you want to be sure that your objections are noted. You do not want to find yourself in a situation where you have appealed the case and opposing counsel argues that you are barred from raising an issue because you did not object the first time around.

The Hearing
This is your chance to put it all together. If you have followed the steps outlined above, you should end up with a successful result.

In Robert's case, we were able to show that Robert did not understand how providing someone with a phone number could be considered arranging drugs. Robert honestly believed that he did not do anything wrong. We also had a powerful character witness that testified about Robert's strength of character, dedication to helping others, and desire to do right. We brought letters of support from agencies for which Robert volunteered. Due to our diligent preparation, the district found Robert deserved a second chance. He was not expelled and is now on a path to a successful future.

Julie Waterstone is a clinical professor and the director of the Children's Rights Clinic at Southwestern Law School.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

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