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

Website, Blog, Twitter, Youtube, Facebook

 

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.

READ MORE - School Expulsion Hearing Evidence Q & A

Top 5 Parent Rights In School Expulsion Hearings

By Michelle Ball, California Education Attorney for Students since 1995

Expulsion hearings are horrific for parents due to the suddenness and shock of the situation ("expulsion- what?!"), and the lack of experience most parents have in the expulsion hearing process.  Top this off with administrators who may tell parents that, "The hearing panel will understand," (when they won't) or "You should do the hearing fast so Joe can get back to school," (when the administrators know that Joe probably will be expelled, not returned to school), and other falsehoods to lull parents into a false sense of security.  It is all very difficult to say the least.  If parents don't watch it and get educated, they may end up with their child expelled, and wonder what just happened.  

So, I thought it may be a good idea to remind parents of some of their key rights in the California public school expulsion process.

1)  The Right To An Expulsion Hearing:  This is one of the most basic rights of all (see California Education Code Section §48918(a)(1).  Many districts attempt to get parents to waive this right and sign a "stipulated expulsion" where they agree to the expulsion.  Whether this is a good idea will depend on the charges, circumstances, the child's discipline history, his/her guilt and other factors, but rule number one is don't just waive your hearing without considering everything and what the terms of the discipline proposal are.

2)  The Right To Proper Notice Of Hearing:  The District has to forward a written hearing notice 10 days prior to any expulsion hearing date per Education Code §48918(b) with certain mandated notifications included in the hearing notice.  The failure of a school district to meet this timeline can be instrumental in getting an expulsion overturned on appeal.  

3) The Right To Request And Obtain All Evidence And Documentation Pre-Hearing:  Parents need to request their child's complete educational files, as well as the school district expulsion packet early in the process.  Per Education Code §49069.7, parents have the right to all of their child's records, and per Education Code §48918(b)(5) they have a right to the expulsion records and evidence.  I have had parents tell me they did not get the evidence the school presented at hearing, or they were not received until the hearing was held.  This can be prevented by making a written request for documents early in the process.

4)  The Right To Never Have An Expulsion Proceed Based On "Hearsay" Alone:  This is a big thing, and is somewhat complex.  Attorneys have a whole year in law school on the rules of evidence, and hearsay is a very key part of these rules.  There is no way I can explain what hearsay is here, but needless to say, generally, if the student did not admit he "did it," and there are no witnesses at hearing in person who testify to what they saw (excluding an alleged sexual battery/assault victim), generally an expulsion cannot proceed, see California Education Code §48918(f)(2).  School districts break this rule frequently, with hearings where no one testifies and no witness says the student "did it" at the hearing itself.  I must caution, there are very complex rules around this, what does and does not count as "hearsay,"  the allowed process for getting "hearsay" documents admitted as "non-hearsay" etc,  but schools often mess this up.  This can also be a great reason to overturn an expulsion on appeal.

5)  The Right To Not Have Your Child Testify At The Hearing:  This is a very important right for parents, and whether a family exercises this right, will depend on the situation, and the evidence.  This right stems from the basic right to make decisions with regard to your child which every parent shares.  Whether your child should testify is VERY TRICKY TO EVALUATE and sometimes it is good for them to talk.  In other cases, it is not positive for them to speak, as the child may prove the school's case for them (e.g. it may help the school to expel them).  This is so difficult to determine, that sometimes I cannot evaluate whether a student should testify until the school has presented their case at the actual hearing itself.  

Whether a student should testify has to be evaluated matter to matter, depending on the unique facts and evidence in the case.  I list this as important here as most parents think they HAVE TO have their child speak as they are told this by school or district personnel and also at the hearing itself.  Parents may even be sneered at or invalidated if they refuse to allow their child to testify, but regardless, the parents are the ones who determine if they will allow their child to testify at an expulsion hearing.

There are many other rights in expulsion hearings, but parents should first get familiar with these five to help their children in the terrible process which school expulsion is for everyone concerned, but most particularly their child. 

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

Website, Blog, Twitter, Youtube, Facebook

 

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, etc. etc.!  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.

READ MORE - Top 5 Parent Rights In School Expulsion Hearings

Students Have A Right To Postpone A School Expulsion Hearing For Up To 30 Calendar Days

By Michelle Ball, California Education Attorney for Students since 1995

Did a public school expulsion recommendation just get sprung on you?  Or is the expulsion hearing fast approaching and you don't feel you have enough time to prepare your child's defense?  Not to worry- you can push back the expulsion hearing, up to 30 calendar days, with no questions asked.  

Parents often feel helpless when they are facing an expulsion hearing.  When they finally receive a hearing date, they may have less than 10 days to prepare.

Meanwhile, parents are still recovering from the shock that their child is UP FOR EXPULSION (!), dealing with their new presence at home, rather than at school, and need to prepare for a legal hearing with evidence and witnesses.  

Parents sometimes have not even received the documents from the school for the hearing when they get the hearing date, or if they did get the expulsion packet, it can be full of falsehoods they don't know how to address.  It can all be very trying.  Postponement can help.

Per California Education Code section 48918(a), a student is entitled to at least one postponement of the expulsion hearing for a maximum of 30 calendar days.

To get the postponement, the request should be put in a formal communication (written), and receipt by the school district verified.  A parent should also follow up to get verification from the school district that the original hearing date is now OFF CALENDAR, even if a new date has not yet been set.  If something goes haywire, like the district did not receive the request for postponement, or a secretary did not pass it on, a parent needs to catch this quick.

In the request for a new hearing, a parent can list dates they may want for the new hearing, or ask that the new date not be set until both sides agree.  Districts don't always coordinate a new date, as sometimes they have set hearing times (particularly if the full school board will hear the matter), but coordination of the new date is usually possible.

There are wrinkles in this, as always, as if there is a procedural issue with the district's notice of hearing and a postponement is requested, this could potentially be waived, but parents may also attempt to reserve any of these issues when they request postponement.  Whether a postponement is advisable or not, is a fact-dependent matter.

Expulsion hearings are very important and should be approached by parents in an organized way.  If  a postponement means the difference between being prepared or unprepared, it may be wise to consider a requesting one.  

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

Website, Blog, Twitter, Youtube, Facebook

 

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, etc. etc.!  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.

Originally published 1/10/11, edited 11/20/19, 9/9/20

READ MORE - Students Have A Right To Postpone A School Expulsion Hearing For Up To 30 Calendar Days

School Expulsions And Pressure To Waive Rights- Be Wary Before You Sign Anything

By Michelle Ball, California Education Attorney for Students since 1995

Waivers of rights are significant things.  However, more and more, parents are subjected to high pressure to sign documents waiving their and their child's rights: to hearing, to a properly noticed hearing, to time limits for the hearing...in school expulsion matters.  Waivers under pressure can be disastrous for students.

One parent told me that their school district provided them with a document for a "stipulated" expulsion (meaning you simply consent to the expulsion in writing) and told them to sign by Friday or FACE A HEARING!  The parent had a picture painted of doom and gloom if they DID NOT sign the document.  Yet, the document bound their child to be expelled for the maximum time possible. Nothing at all would have been gained by signing the document and they could potentially have improved their punishment by simply going to hearing, or involving legal counsel.  How could they get worse?  The punishment they were to consent to was the most heinous possible in the situation.

To add to the trauma, the school official had misrepresented the expulsion potential, telling this parent that their child could be expelled for 1 calendar year, when the law actually limited the maximum expulsion time period to two semesters.  This parent was being told she would be getting a break if she signed the document immediately and that this "break" would disappear by X day at X hour.  The truth is, nothing would have been gained by signing the document, which issued the maximum possible punishment and took away the parents rights to be heard (at hearing) and appeal.

Another parent came to me after a district had pressured them to sign a waiver of time limits.  California districts must send notifications of an expulsion hearing out ten days in advance.  This district convinced the parent to sign a waiver of this timeline to have his hearing in a few days.  They also implied that the student would be out of school a shorter period of time if the hearing proceeded quickly. 

If the district wanted the kid back in school, they would have put them there.  The only reason to push the hearing would be to rush a parent through and get the child OUT of the district.  This is exactly what happened.  When this parent called me to explain, I was all over the breached time limit and the right to appeal--- until I found out about the waiver, which prevented an appeal on this issue.  

Parents mistakenly believe that if the hearing panel quickly hears their child, they will be returned to school.  Sadly, this may not be the case, so rushing is not the answer.  Had the parent not waived the time limit, he could have brought in legal counsel and may have had a better outcome.

Resist the tactics to get you to waive your rights in expulsion hearings unless there is a benefit for your child.  In my experience, there usually is not, unless REAL negotiations have occurred (e.g. with equal footing).  When in doubt, review with legal counsel BEFORE signing.

Best,

Michelle BallEducation Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

Best,

Michelle Ball

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - School Expulsions And Pressure To Waive Rights- Be Wary Before You Sign Anything

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...

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Email: help@edlaw4students.com

Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!] 

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