Thursday, April 15, 2010

Student Expulsion Hearing

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
Wheaton, Illinois


Michael W. Huseman said...

Very informative. Thanks Matt.

Jamie VanRaalte said...

This was certainly informative and also quite frustrating to read. Although I took Children & Legal System at NIU, we did not go into this much depth about school disciplinary proceedings.

The options available to the student once a unfavorable decision has been rendered do not seem to be adequate.

Thanks for your providing the information.

Matthew Kooperman said...

The school district's attorney was really confident in the school's position. I got the sense that the school district felt a petition for judicial review to the circuit court was unlikely. That may have been part of their calculation in trying to expel several students for a really weak drug case. They were definitely trying to make an example out of these kids, and I think they were overreaching.

However, its near the end of the school year, a petition to the circuit court would take a considerable amount of time and money, and its possible that the families wouldn't even get the relief they sought if they petitioned for certiorari to the circuit court. All of this had to be going through the client's mind in deciding not to petition for judicial review, and the school district was most certainly aware of these factors in deciding they could bring this case to a hearing.

Having said this, the school district's underlying case was built entirely on hearsay and coerced statements that the 14 year old client denied making. Based on what I heard at the hearing, it seems to me that the school board's decision was against the manifest weight of the evidence.

The bottom line is that more school board disciplinary decisions should be taken to the circuit court for judicial review and if necessary, appealed to the appellate court. There is published caselaw on school district hearings, but the published caselaw is rather sparse. There are a few seminal cases that each side can rely on, but the cases don't cover the majority of fact patterns. More appeals would help develop this area of the law.

Furthermore, if more families petitioned for judicial review, it would put school districts on notice that they shouldn't overreach or that they should be more careful in evaluating the facts in their case before taking students through the hearing process. Its clear that the school district I dealt with thought it could get away with something here, and that's why they were confident when they tried to overreach.

In a setting where procedural and evidentiary safeguards are relaxed and so much is at stake for the future of students and young people, its unfortunate that the decision whether to seek judicial review comes down to money and whether the families can afford the cost of litigation.

Anonymous said...

HELP!!! I am a parent in the expulsion process; my hearing is on Monday, January 31, 2011. Pleaae consullt or send me the citations for the cases and statues. The case involves "assault on a teacher," no criminal charges were filed. Thanks for ANY help.

Michael W. Huseman said...

I suggest that you call Matt Kooperman tomorrow. He can be reached at (847)690-9990.

This is rather late notice, but Matt may be able to assist you.

Anonymous said...

Thanks for taking the time to write and post this information. Roughly speaking how much does it cost to appeal a school board's decision to expel? I know exact figures would be impossible to determine but what are we talking about $5000.00, $10,000 or more? I agree more families should appeal their decisions to the courts because schools are burden and would rather disregards a student's rights if they have been labeled as a trouble maker. That's not to say expulsions are not warranted but in far too many cases the outcome as stated in the article is often time overreaching.

Anonymous said...

Thanks for this useful blog; this is the 3rd expelled child and any and all information helps. My expulsion hearing was canceled; no additional information was given by the district to explain what this means. What is the differerence if the kid maybe special education and expelled? Thanks for helping, I will blog updates on my experiences to assist in future cases.

Anonymous said...

The Hearing Officer at my expulsion hearing conducted the hearing fully aware that no documents were received by the parent. I was told to request them post hearing, wow. What steps are needed to appeal expulsions? I truly need to move to the next level. Thanks for all the help and information.

Anonymous said...

my 13 year old sons expulsion hearing is set for tomarrow at 6pm i didnt get the notice till saturday. I have done alot of research on this matter and no fully understand i need a lawyer but cant afford one. I have been denied any records the school will be using to be at the hearing. Even denied a copy of my sons school record any help with what to do would be highly appreciated

Anonymous said...

how do i file a writ? is there any information on the internet somewhere on how to file a writ to appeal the boards descision to expel? Can i file a writ if it is a public charter school?