Last Updated on March 17, 2021 by Michelle Ball
By Michelle Ball, California Education Attorney for Students since 1995
Expulsion hearings are horrific for parents due to the suddenness and shock of the situation (“expulsion- what?!”), and the lack of experience most parents have in the expulsion hearing process. Top this off with administrators who may tell parents that, “The hearing panel will understand,” (when they won’t) or “You should do the hearing fast so Joe can get back to school,” (when the administrators know that Joe probably will be expelled, not returned to school), and other falsehoods to lull parents into a false sense of security. It is all very difficult to say the least. If parents don’t watch it and get educated, they may end up with their child expelled, and wonder what just happened.
So, I thought it may be a good idea to remind parents of some of their key rights in the California public school expulsion process.
1) The Right To An Expulsion Hearing: This is one of the most basic rights of all (see California Education Code Section §48918(a)(1). Many districts attempt to get parents to waive this right and sign a “stipulated expulsion” where they agree to the expulsion. Whether this is a good idea will depend on the charges, circumstances, the child’s discipline history, his/her guilt and other factors, but rule number one is don’t just waive your hearing without considering everything and what the terms of the discipline proposal are.
2) The Right To Proper Notice Of Hearing: The District has to forward a written hearing notice 10 days prior to any expulsion hearing date per Education Code §48918(b) with certain mandated notifications included in the hearing notice. The failure of a school district to meet this timeline can be instrumental in getting an expulsion overturned on appeal.
3) The Right To Request And Obtain All Evidence And Documentation Pre-Hearing: Parents need to request their child’s complete educational files, as well as the school district expulsion packet early in the process. Per Education Code §49069.7, parents have the right to all of their child’s records, and per Education Code §48918(b)(5) they have a right to the expulsion records and evidence. I have had parents tell me they did not get the evidence the school presented at hearing, or they were not received until the hearing was held. This can be prevented by making a written request for documents early in the process.
4) The Right To Never Have An Expulsion Proceed Based On “Hearsay” Alone: This is a big thing, and is somewhat complex. Attorneys have a whole year in law school on the rules of evidence, and hearsay is a very key part of these rules. There is no way I can explain what hearsay is here, but needless to say, generally, if the student did not admit he “did it,” and there are no witnesses at hearing in person who testify to what they saw (excluding an alleged sexual battery/assault victim), generally an expulsion cannot proceed, see California Education Code §48918(f)(2). School districts break this rule frequently, with hearings where no one testifies and no witness says the student “did it” at the hearing itself. I must caution, there are very complex rules around this, what does and does not count as “hearsay,” the allowed process for getting “hearsay” documents admitted as “non-hearsay” etc., but schools often mess this up. This can also be a great reason to overturn an expulsion on appeal.
5) The Right To Not Have Your Child Testify At The Hearing: This is a very important right for parents, and whether a family exercises this right, will depend on the situation, and the evidence. This right stems from the basic right to make decisions with regard to your child which every parent shares. Whether your child should testify is VERY TRICKY TO EVALUATE and sometimes it is good for them to talk. In other cases, it is not positive for them to speak, as the child may prove the school’s case for them (e.g. it may help the school to expel them). This is so difficult to determine, that sometimes I cannot evaluate whether a student should testify until the school has presented their case at the actual hearing itself.
Whether a student should testify has to be evaluated matter to matter, depending on the unique facts and evidence in the case. I list this as important here as most parents think they HAVE TO have their child speak as they are told this by school or district personnel and also at the hearing itself. Parents may even be sneered at or invalidated if they refuse to allow their child to testify, but regardless, the parents are the ones who determine if they will allow their child to testify at an expulsion hearing.
There are many other rights in expulsion hearings, but parents should first get familiar with these five to help their children in the terrible process which school expulsion is for everyone concerned, but most particularly their child.
Education Attorney for Students
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
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Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.