Reviewing District Policies and Evidence

Immediately upon agreeing to represent a student in a discipline case, the attorney should read the applicable district policies.   While there is some commonality in the rights and procedures granted to students in discipline cases, local districts have a great deal of discretion in how they interpret due process.  Therefore, the policies of these districts vary greatly.   In addition, the districts vary considerably on what penalties are imposed for various offenses.  It is important to read the policies carefully to make sure they have been followed, both procedurally and substantively, and to be aware of any other unique requirements of the district. 

1. Requesting documents/evidence

Following the interview, the attorney should request a copy of the child’s school record.  This request must be accompanied by a signed release from the parent.  Click here for sample release.  The attorney should direct the records request to the school principal.  The following should also be requested:

  • student’s cumulative file (this file contains academic, attendance, and disciplinary records);
  • student’s confidential file, if the child receives special education  (this file contains special education records only)
  • copies of any written statement provided by witnesses to the event;
  • a videotape of the alleged incident if one is available.  (The district may decline to share this with you.  Make a written request for it and put the written request in the record at the time of the hearing.  This way, you can preserve the denial of evidence as a claim if the case goes to Superior Court.)

The attorney may also wish to obtain records from other sources, including:

  • relevant mental health records (click here for example of record release form);
  • relevant medical doctors/ hospital admissions (click here for example of record release form);
  • juvenile justice records when criminal charges are filed simultaneously (click here for example of record release form);

If a hearing has already occurred, the attorney should request a recording or transcript of the hearing.

2. Investigating the facts

It is usually helpful to talk directly to everyone who may have relevant information, including school personnel and other students.  It is best to ask the permission of the parents of other students before you speak with them.  If you want them as witnesses, you will need their parent’s permission to testify.  School personnel may or may not be willing to share information with you, but it is always important to try to understand fully the perception of the school authorities about the incident and why it was considered severe enough to merit long-term suspension.  Usually, once the school administrators learn that the student has counsel, they will retain counsel and stop talking to the student’s lawyer.  Teachers and other school employees who are potential witnesses may be approached even after the district has counsel; the ethical rules only prohibit the student’s attorney from contacting those administrators who are in a decision-making capacity in the matter once they are represented by an attorney.

Be certain to investigate your client’s on-line presence, in Twitter, on Facebook, or in any other on-line forum.  Also, to the extent possible, do the same for other students who were involved in the incident at issue or may have posted about it.  It is not unethical to “friend” someone on Facebook to gain information about the case, so long as you use your real name and do not misrepresent who you are.

Character witnesses can be very helpful in demonstrating that the student’s actions were atypical or that the alleged incident is an aberration from the student’s background.  People who know the student and who would make strong witnesses include: coaches, current and former teachers, former administrators (the current one is likely involved in the case), guidance counselors, employers, religious and civic organization leaders, and family friends.

3.  Negotiating

The attorney for the student is free to contact the principal or assistant principal to inquire about a negotiated resolution, unless the attorney knows that the school has retained counsel on the matter.  Some school officials will speak freely and be interested in hearing about mitigating facts, alternative punishments, or other proposed resolutions.  Others will not speak to a student’s attorney, but be open to a negotiated solution worked out between the student’s attorney and the school’s attorney.  Others will not want to negotiate, but rather, will want to go forward with the discipline hearing.