Part 2 of 2
While a hearing is not as formal as a court trial, it is a legal proceeding and will probably be your only opportunity to tell your story.
There is no right to appeal the hearing officer’s decision in court if you are not happy with the outcome.
The hearing will either be tape-recorded or a stenographer will take down all that is said.
The hearing officer will listen while each side tells its story and will then decide:
- whether the child has done what he or she is accused of doing; and
- if so, should the child be expelled and how long the expulsion will last.
It is up to school officials to present enough evidence to justify expelling the student. Therefore, the school goes first in presenting its “case.” A school official will be the one to ask questions of the school’s witnesses. In addition to having people tell what they saw and heard, the school can give the board documents that support its position. The school may offer evidence about past discipline problems. Remember, the school has to prove that your child actually broke the rules by having someone with first-hand knowledge of the situation tell the facts to the hearing officer.
For example, a principal cannot tell the hearing officer “I did not see what happened, but afterwards the teacher told me _________”. If the school does not produce a witness who was actually there when the incident took place, or tries to prove its case using only written documents, be sure to point this out to the hearing officer. After the school official is through asking questions of each witness, the student, parents or their representative may ask their own questions, or “cross-examine” the witness. The purpose of cross-examination is to bring out additional information that might be helpful to the child’s case. It will not help your child’s case if you argue with a witness, even if you think he or she is not telling the truth. It is better for you and your own witnesses to explain what happened when it is your turn to speak to the board.
The Student’s Response
When the school has finished presenting its case, it is the child’s turn. Ask each of your witnesses to come forward to speak one at a time. Ask them to tell the board what they saw or heard or what they know about the incident or your child.
The school will then have a chance to cross-examine each of your witnesses.
Your child does not have to testify about what happened, and in some cases, should not be a witness. If there is a person who would be a good witness for your child, but that person will not come to the hearing at your request, you can ask the hearing officer to send the witness a subpoena. A subpoena requires the witness to attend the hearing. If you want the hearing officer to subpoena a witness, make this request as far ahead of the hearing as you can. Once all the witnesses have spoken and any written evidence has been given to the hearing officer, each side will have a chance to make a final statement. This is your chance to summarize what you think happened and what you think should happen. Finish by asking the hearing officer not to expel your child and/or to expel your child for only a very short time. To make the best possible presentation to the board, you will need to be prepared, organized and polite.
Angry words or conduct directed at the school officials or the board will only add additional stress to the situation and may even hurt your child’s case.
What if my child has been arrested and has to appear in Juvenile Court?
It’s not unusual for a child to face expulsion and criminal charges for the same incident. The school can expel the child even if the criminal case is still going on and there is no conviction.
Expulsion hearings usually take place before the criminal case is resolved so the child should be careful not to make statements at the expulsion hearing which could be used against him/her later in Criminal or Juvenile Court.
Be sure to consult with the public defender or defense attorney handling the criminal matter about what, if anything, your child should say at the expulsion hearing.
If we lose the hearing and my child is expelled, will my child be able to continue receiving an education?
If your child is under sixteen, he or she will be offered alternative education during the expulsion. If your child is between the ages of sixteen and eighteen and wants to continue his or her education, alternative education will be offered so long as your child complies with any conditions the board may set. However, the board does not have to offer alternative education to students between sixteen and eighteen if the incident involved weapons or drugs, or if the student has been expelled before.
Can I stop the expulsion by transferring my child to another school or school district?
If your child withdraws from school before the expulsion hearing is held, his or her record will still contain the notice of expulsion hearing.
In most cases, the new school district cannot refuse to admit your child based on his/her record alone, but it has the option of holding its own expulsion hearing based on the incident at the old school.
Can the school withdraw a child from its attendance without going through the expulsion process?
No child under 18 can be withdrawn without a parent’s permission.
However, schools sometimes withdraw children over 18 if the child has not been attending school very often. Just because your child has been withdrawn, however, does not mean he or she has lost the right to attend school. If your child starts attending school again after being withdrawn, he or she should be administratively re-admitted. However, the child may not receive credit for classes due to poor attendance.
My child has disabilities and is in special education. Can he be expelled?
Your child cannot be expelled if the school wants to expel your child for behaviors that are caused by your child’s disability. If the school is considering expulsion, it must hold a Planning and Placement Team (PPT) meeting first.
Two things need to be decided at this PPT. First, was the misconduct caused by your child’s disability?
Second, was the behavior caused by the school’s failure to put some important part of the IEP (your child’s individualized educational plan) into place?
If the answer is yes to either of those questions, the team should talk about changing the IEP to fix the problem.
The team should not recommend expulsion. If it is decided that the answer to both questions is no, your child could be referred for expulsion. If your school does not schedule a PPT meeting, request a PPT meeting.
What if my child’s PPT decides that the misbehavior was not the result of his disability?
If the PPT decides that the behavior was not a result of your child’s disability, it may go ahead with the expulsion hearing. If you disagree and believe the misconduct was caused by the disability, you may request a due process review to appeal the PPT decision. Normally, the child’s education will continue in the alternative setting chosen by the PPT until the due process review has been completed. However, the child could return to his or her prior special education program if both the parent and school agree to the return. The due process hearing must happen within 20 days of the date it is requested. The due process officer must make a decision within 10 school days after the hearing. If your child is expelled, he or she will still have to be placed in a program where the IEP can be carried out in the least restrictive environment.
What if I think my child is eligible for special education, but the school has never identified him as a special education student and now he is being expelled?
The school can expel your child if he/she is not an identified special education student unless the school had knowledge that your child is a child with a disability. Some ways that the school might know your child has a disability is if:
- you have previously expressed your concern about your child in writing to the school;
- you requested an evaluation of your child;
- your child’s behavior or performance in school showed that he/she needed special education, or
- school personnel expressed a concern about your child through the school’s special education referral system.
- If you believe your child should have been identified as needing special education, you should immediately request a PPT meeting. Then, when you go to the expulsion hearing, you should ask for a postponement of the hearing before the hearing starts. You should show the hearing officer a copy of the letter you wrote asking for a PPT meeting.
What if my child has already been expelled and I think he is eligible for special education services?
You should immediately request an expedited evaluation of your child by requesting a PPT.)
If possible, you should consult with an attorney before making that request to see if your child is eligible for an independent evaluation by someone not employed by the school. If your child is found to be eligible for special education services, the school must provide those services even if your child is already expelled. If you disagree with the evaluation results, you can request a hearing
Will the expulsion stay on my child’s school records forever?
The expulsion will be erased from the child’s school record if he or she graduates from high school, unless the expulsion was for possession of a firearm or deadly weapon.
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