I represented a middle school student this week at an expulsion hearing. The hearing was held before five members of a local school board. The allegation was that my client and several other eighth graders were involved in the sale of marijuana at the middle school. The evidence against my client was extremely weak. The evidence was based on hearsay statements by another eighth grader. Aside from the hearsay, the school's attorney introduced statements allegedly made by my client. Yet my client denied he ever made the statements. In the end, all six eighth graders, including my client, were expelled for the remainder of the school year.
I had to get up to speed in a hurry on the evidence and procedural rules applicable to school board disciplinary hearings. I now share with you the current law as I understand it. If anyone gets involved in a school board hearing I'd be happy to either consult with you by telephone or send you the citations for the cases and statutes. Statutory and case law itations omitted below. Needless to say, I'm a bit bitter at this point about school board proceedings. As you'll see below, they are a kangaroo court, heavily stacked in the school's favor.
In Illinois, school board hearings are distinctly different from hearings in a court of law. School board disciplinary hearings fall under Administrative Law, not Criminal Law, but the stakes are just as high. The allegations facing students are oftentimes very similar to allegations they would face in the criminal courts if they were criminally charged for the same alleged acts of misconduct. In school board cases a hearing officer, usually a lawyer for the school district, conducts the hearing, and the school board members hear all the evidence and vote on the outcome in a closed session school board meeting. An unfavorable outcome of the administrative hearing can lead to expulsion from school as well as other administrative sanctions imposed by the school district, but does not include possible jail time or the creation of a criminal record. Any potential criminal case would be brought separately, by the State's Attorney's Office or a village prosecutor, either in adult or juvenile court, and would be an entirely separate proceeding from the school board hearing.
The Due Process standards that exist to protect the parties and ensure the integrity of civil and criminal court proceeds are virtually non-existent in the school board setting. The Illinois School Code provides the bare minimum guidelines concerning the protection of a student's constitutional right to Due Process. The School Code requires that a written notice containing a description the charges, providing the date, time, and location of the hearing, and informing the student and parent of their right to be heard, be sent to the student and/or parent/guardian. However, the School Code does not provide specific guidance on what constitutes sufficient notice. Frequently the notices are sent out just days before the expulsion hearing, forcing students and their parents to scramble to hire a lawyer and to determine how to answer the charges. In a published, opinion an Illinois Appellate Court has ruled that notice received as little as two days before the school board hearing was sufficient notice. Suffice it to say that the deck is stacked steeply against the student and their parent/guardian virtually from the beginning.
The procedural and evidentiary rules that exist in a judicial court are also virtually non-existent in the school board setting. In a courtroom setting, attorneys for both sides can make trial objections based on the rules of criminal procedure or civil procedure, and the rules of evidence. However, in Suspension and Expulsion Hearings before a school board, this is not the case. The statutory and common law rules that have been in place for hundreds of years in courtrooms in Western Europe as well as the United States are thrown virtually out the window. Hearsay evidence frequently comes in during school board proceedings, and the right of the accused to confront and cross-examine the witnesses against them is blatantly violated time after time. The rights and protections that exist to protect the accused in a courtroom setting don't apply in school board hearings because they fall under Administrative Law and they are only Quasi-Judicial in nature.
The unique character of school board hearings, because they take place in a school setting, and due to the fact that frequently the material witnesses happen to be minors, provides some explanation and helps to somewhat justify why these proceedings are so procedurally different than hearings or trials in the judicial setting. However, the differences are so great that the rights of the accused student, unfortunately, are grossly infringed upon, both through the admission of hearsay evidence, and due to the fact that the accused is not provided the opportunity to cross-examine juvenile witnesses. Other students' out of court statements are introduced anonymously at these hearings and are given weight, without affording the accused an opportunity to cross examine the school's witness to verify the witness' credibility and to probe for bias, motivation, and prejudice. This treatment stands contrary to some of the fundamental founding principles of our judicial system, yet it is legal because these hearings take place before a school board and the proceedings comply with the bare minimum requirements as outlined in the Illinois School Code.
While an Illinois school board's decision to expel a student is final, a process does exist for judicial review. Depending on which legal theory the case is based on, civil law suits against the school district and the school board members can be initiated in Federal and State courts. Federal "Section 1983" civil rights lawsuits brought in the U.S. District Court can challenge a deprivation of the accused student's Due Process Rights under the U.S. Constitution. Alternatively, a civil law suit filed in State court can challenge the sufficiency of the evidence in the school district's case or raise Due Process concerns predicated on the admission of hearsay evidence and/or deprivation of the opportunity to confront and cross-examine the school's juvenile witnesses. Decisions by school boards to expel students have been reversed in Illinois at the trial court level through the judicial review process based on each of these legal theories. Due to the fact that there is no judicial review procedure of a school board decision that exists in any Illinois statute, the judicial review process in Illinois State courts is initiated by filing a common law Writ of Certiorari. If either the student and student's parent/guardian or the school district are unsatisfied with the outcome in the Circuit Court, further appeal can then be made to the Illinois Appellate Courts.
Any student facing school board disciplinary proceedings should immediately consult with an attorney. The consequences of student expulsion can be serious and long-lasting.
Posted by Matthew Kooperman
The Law Office of Matthew I. Kooperman