Children’s Law Clinic Resources

The policies and procedures followed by school districts in student discipline hearings vary tremendously.  Nevertheless, there is some common ground.  The district must provide students and their parents a written notice of the suspension.  All districts have a provision on notice.  These generally require that students be informed of the policy they are being accused of violating, be provided a copy of the policy, be informed of their right to appeal, and be provided the substance of the accusations against them.  Few district policies require that notice be provided in a parent’s native language (if it is other than English), which may create obvious communication problems between the family and school.  Districts are not required to (and frequently do not) provide notice of who will be called as witnesses.

1. Hearing format

Each district offers the suspended student an evidentiary hearing before some type of panel and/or hearing officer.  In some districts, the administrative panel consists of three individuals, who might be teachers or other selected individuals.  The panel usually acts as a fact-finder, although may be able to make recommendations regarding the length of the suspension as well.  In some cases, the student is allowed to select one member of the panel.  Persons with first-hand knowledge about the alleged misconduct are prohibited from serving on the panel, as the panel must be unbiased.  In other districts, testimony is taken by a hearing officer designated by the Superintendent, or by the Superintendent or Assistant Superintendent him or herself.  In some districts, there is both a hearing officer – who handles the administrative aspects of the hearing – as well as a fact-finding panel.

Districts vary in terms of the precise format of the hearing.  In some, the student and/or student’s attorney, as well as the principal, will be able to give an opening statement and a closing argument.  Even if those are not a part of the prescribed proceeding, the student’s attorney can ask to deliver both an opening and a closing.  Testimony will be taken in virtually every hearing, although it may be more or less formal depending on the district.  Hearings usually last no more than an hour or so.

2. Rules of evidence

In general, the hearings are informal and the Rules of Evidence do not apply.  The school districts’ policies differ regarding their treatment of hearsay evidence at the hearing. Some school districts do not specifically address whether hearsay evidence is allowed or not. Other districts explicitly state that hearsay evidence is permissible.   Still other districts follow a policy somewhere in between, stating that while formal rules of evidence do not apply, the panel or decision maker should rely on evidence that “a reasonably prudent person” would use in a “serious” situation.  While not mentioning “hearsay” by name, some districts appear to require witnesses to appear in person for their testimony to be considered.

3. Subpoenaing witnesses

Most school districts do not provide the right to subpoena witnesses.   However, a few districts do provide for such power.  Even if there is no right to subpoena witnesses, the attorney for the student should make a written request to the hearing officer or principal for the presence of any students or school personnel whose testimony is sought.  Student witnesses will need the permission of their parents to testify; teachers or other school employees will usually need permission from the principal.

4. Witnesses testifying under oath

The large majority of school districts do not require witnesses to testify under oath.   A few of the districts, however, do have this requirement.  

5. Requirement that a record be kept of the hearing

The school districts also vary as to whether, and in what form, they require records to be kept of the hearings. Some school districts explicitly choose not to make a record of the hearing.   Some school districts require that a record of the hearing be made, but do not indicate what form that record must take.   Some school districts specify that a written or tape or video recording is required. If the school district does not keep a record, however, it will have a very difficult time proving that the decision was based on substantial evidence, which it must do to defend the decision if a student asks for judicial review of the final administrative decision.  If the school district does not have a routine process in place to make a record, the attorney representing the student should make a request (in writing if possible) that a record be made.  If the request is denied, the lack of a record could form the basis of a reversal or at least a remand if the case goes to Superior Court.

6. Burden of Proof

In most districts, the policies make clear that the principal has the burden of proving that the student committed an offense punishable by long–term suspension.  Even in the districts that don’t specify, the attorney representing the student should proceed upon the assumption that the principal has this burden.   Although most policies don’t state the modicum of proof needed, it certainly is not “beyond a reasonable doubt.”  The decision can be upheld by the Superior Court if it is based on “substantial evidence,” which is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and is more than a scintilla or a permissible inference.  The burden of proof required in a case involving permanent expulsion is “clear and convincing,” pursuant to N.C.G.S. §115C-391(d).

7. Presentation of evidence.

The hearing will virtually always begin with a presentation by the principal or his/her designee setting out the grounds for the suspension.  When the school district has an attorney, the attorney will conduct a direct examination of the school witnesses.  Typically, the principal (or designee) will relate how he or she came to know of the offense and how the investigation proceeded.  Sometimes, the school resource officer will also testify, if the officer was involved in the incident.  The principal will rarely, if ever, call other students to testify, but might present written statements (with names redacted) of student witnesses.  Attorneys for the student should be attentive to the discipline policies and to whether the principal has proved all the elements of the offense charged.  The attorney for the student will have the opportunity to cross-examine the principal (or designee) and any other witnesses.

Documents can be made a part of the record.  It seems best to have the documents read into the record if a recording is being made.  Documents should not be excluded as hearsay, but they should be authenticated as well as possible and certainly be relevant.  If the documents are statements of students or other witnesses who are not there to be cross-examined, the attorney should object to their introduction to preserve that argument for a Superior Court review.   If the attorney can show that a cross-examination of the witness could have reduced the credibility of the statement, the statement may be found not to constitute “substantial evidence.”   At Superior Court, the attorney for the student can also argue that the denial of the opportunity to cross-examine witnesses against the student denied the student due process.

8. Defending the Student

In every district, the student has the opportunity to defend against the charges and the proposed penalty.  The attorney and the student should be sure to discuss in advance the theory of the defense.  Typically the defense will be 1) the student did not engage in the conduct described on the suspension notice; 2) the student engaged in some, but not all, of the conduct described; or 3) the student did engage in the conduct described, but for any number of reasons, should not be subjected to long-term suspension.  Often, the attorney and/or student will be given an opportunity at the beginning of the hearing to state whether the student denies the charges or admits the charges but wishes to have the penalty reduced.

As in a criminal or juvenile case, the student does not have to testify.  Nevertheless, it is fairly difficult to rebut the presentation of the school without the student’s testimony, particularly given the low burden of proof placed on the school.

If there are related juvenile or criminal charges, however, it is important to know how the student’s attorney plans to handle that case.  Statements made in the discipline hearing should not be considered protected from the juvenile court hearing if one is pending.  If the student does chose to testify, he/she will be cross-examined.  It is useful to practice the cross-examination with the student to help him/her be prepared.

If the student admits the conduct, and the attorney and student have chosen only to argue for a shorter penalty, it is generally advisable to have the student make a statement of some kind to the hearing panel or officer.  The decision-maker will want to hear from the student.  An explanation of the event, an apology, or both, is often well-received.  If the student can commit to some course of action in the future that will mitigate the chances of a similar event reoccurring, he/she should share that.  Students should be asked to write out their statement and review it with the attorney.  It is critical that the attorney require the student to practice any statement.    The student should bring a written copy of the statement to the hearing.  Some students are unable to deliver a coherent statement in the setting of the hearing; if it is written out, the attorney or someone else can read it into the record if the student cannot. 

In most hearing settings, evidence from “character witnesses” will be admitted and can help mitigate the penalty.  Coaches, pastors, scout leaders, employers, and the like can submit written statements that support the student.  These can express such themes as “this is really a good kid; what he did was out of character,” or “this kid has had a lot of hard knocks and really needs to be in school,” or “I’m here to help this kid get back on track and enforce discipline on him.”  A parent can also make an oral or written statement to the panel/hearing officer.

9. Hearing Decision

The hearing officer or panel will make a decision following the hearing.  In some cases, the decision will be made right away, while the student, his parent, and the attorney wait, and it will be delivered orally to the student.  In other cases, the student’s parent will be called within 24 hours of the hearing.  Nearly all of the school districts provide that, if the superintendent approves the hearing’s decision to suspend a student long-term, he must send written notice to the student’s parents informing them of his or her decision.   Other districts provide for the provision of a more complete basis for the superintendent’s decision including a report to the parents indicating the panel’s recommendation, the findings of fact, and the final decision based on those findings.  In contrast, other school districts do not indicate any obligation on the part of the superintendent to provide any written notification to the parent’s of his decision to uphold the hearing panel’s decision or to issue findings of fact. 

10. Appeal to the School District’s Board of Education

Unless the Board of Education conducts the initial hearing, the decision coming up from the superintendent level is appealable to the Board.  Some school districts are more elaborate than others in describing this appeals process. Some districts simply state that a student may appeal the superintendent’s decision to the board of education while others specify that a panel consisting of a certain number of board of education members will hear appeals of the superintendent’s decisions based upon assertions that either due process was not provided or that the decision was against the weight of the evidence. Districts frequently state that the appeal is based solely upon the record of the previous hearing, with the school board able to allow new evidence if they deem it necessary.  When that is the case, the board will generally hear an oral argument on behalf of the student, and may also be willing to hear a statement from the student or his/her parent.  The decision of the Board must be in writing, and is appealable to Superior Court.