Last Updated on September 9, 2022 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
School expulsions happen frequently and suddenly to unsuspecting students and families. Skillful handling can mean the difference between an expulsion issuing and a finding of innocence.
There are many rights parents and students have during the expulsion hearing process. One of these is the right to request subpoenas be issued to get a witness to testify.
Subpoenas Can Be Important for Expulsion Hearings
A subpoena is an official order for a witness to appear before a legal body or face consequences. The right to subpoena witnesses is an important part of our judicial system.
Courts and other agencies deciding matters, such as school boards, must be able to hear the complete case. If an expulsion panel cannot review all the evidence, including live witness testimony, how can they validate the facts alleged?
Similar to traditional courts, California expulsion hearings contain a subpoena right for the parent and student, as well as the school district.
Who Can Subpoena Expulsion Witnesses?
In school expulsion hearings, the power to issue a subpoena rests in the hands of the expelling school district.
California Education Code 48918(i)(1) states:
Before the hearing has commenced, the governing board of the school district may issue subpoenas at the request of either the superintendent of schools or the superintendent’s designee or the pupil, for the personal appearance of percipient witnesses at the hearing. After the hearing has commenced, the governing board of the school district or the hearing officer or administrative panel may, upon request of either the county superintendent of schools or the superintendent’s designee or the pupil, issue subpoenas.
Parents Can Request Direct Witnesses Be Subpoenaed
What this means is that parents may ask the school board to issue subpoenas for any witnesses who saw what occurred.
Percipient witnesses, aka direct witnesses, are individuals who saw the action alleged. They don’t include character witnesses (witnesses talking about how great the accused student is but who did not see anything).
So, if Student X is alleged to have stolen money and there was a student witness, a parent can ask that the student witness be subpoenaed. Then the student witness will receive an order from the district to attend the expulsion hearing and testify under oath.
If Subpoenas Are Desired, Parents Have to Ask
Often districts do NOT subpoena witnesses unless a parent asks them to. Rather, school districts instead attempt to get a student expelled based on sworn statements and a confession, or maybe just sworn statements.
Schools may even omit direct witness testimony at the expulsion hearing altogether.
If there is an important witness who will help the student’s case, parents cannot expect the district involved to subpoena that witness. Why would a school district want to subpoena the witness if they ruin the expulsion case?!
Subpoenas Can Be Requested Through Superintendent’s Office
As such, parents need to request that witnesses be subpoenaed by the school board, usually via the superintendent’s office, in advance. If the school board will not issue the subpoenas, that may present a potential basis for an expulsion appeal.
Chances are that most districts will subpoena witnesses when this is requested by parents, so long as requests are not excessive or unreasonable.
But, Do You REALLY Want to Subpoena the Witnesses?
The next question is, does a student want to subpoena witnesses? Will the witness actually help or harm the student’s case?
This is a strategic question that has to be resolved case to case, depending on the facts.
Michelle Ball is an attorney for students facing expulsion, suspension and other discipline. As a Sacramento, California based education lawyer, she may consult statewide in San Jose, Redwood City, Meadow Vista, Colfax, and many other locations.
Originally written January 24, 2012