Wednesday, February 15, 2012

Eight Things NOT To Do At A School Expulsion Hearing

By Michelle Ball, California Education Attorney for Students since 1995

As school expulsions are occurring at such an alarming rate to our children, it is important for parents to know what NOT to do when embroiled in an expulsion hearing.  

Here is what you should NOT do at a school expulsion hearing:


1)  Do not allow your child to testify.   Make the district prove their case, and don't do it for them.  One  exception could arise if your child has already fully confessed to having "done it" in writing.
2)  Do not forget to object to evidence.  If the school district attempts to admit evidence which should not be allowed into the hearing record (e.g. evidence from another student), object and ask for it to be removed.
3)  Do not get emotional at the hearing if you are the one making the arguments.  If you do not bring an attorney with you and are the one making the arguments to the expulsion panel or board,  you should not get emotional.  There is no crying or extreme emotion allowed when acting as the advocate for the child.  If a parent is testifying as a parent, emotion is fine, but not if your role shifts to the advocate making the case.
4)  Do not forget to prepare opening and closing statements and witness questions.  You must make an opening and closing statement, plus question any and all witnesses at the hearing.  However, in the heat of the moment, you may forget something, so do prepare an outline and list of anticipated questions for the hearing.
5)  Do not forget to submit documents.  Parents should submit a stack of character letters in support of their child along with any other evidence which can prove they did not do what they are accused of doing.  Gather and bring to the hearing all relevant documents and ample copies for all parties.
6)  Don't take it personally.  The school expulsion hearing may feel personal, but don't take it that way.  Act professionally at all times, or your credibility may be ruined.
7)  Don't forget the district will not "be nice" in the hearing.   Although everyone may be polite, this is war against your child.  Parents cannot go into an expulsion hearing believing it is a "light" process or procedure.  Expulsion hearings are very serious and have serious consequences.  Take them that way and you have a better chance of winning.
8)  Don't forget to bring witnesses to support your case.  Bring students or others with you to the hearing to support your case via live testimony.  If you can't get a hold of them, you need to request they be subpoenaed by the district.

These are some key items all parents going into an expulsion hearing should know.  Also, it is usually best to bring an attorney with you to the hearing, but the above should help if you are on your own.  

Best of luck in battling the lions when they come after your son or daughter.  I always tell my kids I will "slay any dragons" for them, and an expulsion is something you need to defeat, for like a dragon, a school expulsion could leave them scarred for life.


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
[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.

Friday, February 3, 2012

California School Expulsion Case: John A. v. San Bernardino, An Oldie But Goodie From The California Supreme Court

By Michelle Ball, California Education Attorney for Students since 1995

Parents often need all the help they can get in handling school expulsion hearings. One of my favorite cases to attack expulsion hearings for an utter lack of proper evidence is John A. v. San Bernardino City Unified School District, decided in 1982 by the California Supreme Court.

In this beautiful case, the California Supreme Court evaluated an expulsion of "John A." for allegedly being involved in a large altercation not witnessed by anyone but students.  At John A's expulsion hearing, no direct witnesses (e.g. students who actually saw or were involved in the fight) testified, other than John A.  Rather, the district's case revolved around reading a summary from the school into the record and written witness statements.  When John A. spoke, he explained that he did not strike nor kick the boys involved.  Rather, he said the boys were "play boxing."  He denied any racial connection, that he yelled derogatory terms, or that he chased anyone.  He also disputed the injuries alleged to two of the participants.

The district expelled him for an "unprovoked attack on two students." On appeal to the county board of education and even the lower court, the expulsion was upheld.  Although the lower court later allowed the district to submit 30 declarations showing that there had been threats against students involved in school hearings, it appears that no evidence of any threat from John A. to the witnesses was provided.

The California Supreme Court, overturned the expulsion, ordering it expunged from John A's records.  In its decision, Justice Broussard explained:  "A decision of the governing board to expel must be supported by a preponderance of the evidence..."   and  "It [district]  may not rely on administrative reports when evidence is conflicting and witnesses are readily available."

The court also discussed the denial of the right to cross examination and the evidence supporting the lack of witnesses (alleged witness danger), stating:  "While the risk of retaliation may be substantial in some cases, it does not warrant board reliance on reports in all cases or in the instant case where there is no showing or finding of a significant and specific risk of harm..."

This case is significant in that it reinforces the fact that a student may not be expelled based on hearsay alone (see also Education Code §48918(f)) and that if the district wishes to rely on written testimony instead of calling live witnesses, they must show that "disclosure of identity and producing the witnesses would subject the informant to significant and specific risk of harm...."

This case is music to my ears. It not only backs up the education code, but gives an example of what districts cannot do.  They cannot expel a student based solely on written statements without direct testimony showing the alleged act(s) occurred.  Also, if they wish to exclude a witness and use his or her written statement instead, they must make a specific showing regarding harm.  The legislature defines this further in Education Code 48918(f) as "unreasonable risk of psychological or physical harm."

For now, parents embroiled in an expulsion hearing must be aware that if their child did not confess to the alleged "crime" he or she is accused of, the district must provide at least some direct testimony at the expulsion hearing.  If the district wants to substitute written statements for live testimony, they must make a specific showing of potential harm to the witness should they testify.  This is an area which is often lacking and can be a great argument for appeal.  Districts frequently fail to bring anyone who actually saw the alleged incident to the expulsion hearing, which could give the county board or courts a reason to overturn the expulsion altogether on appeal.


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
[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.