Gone are the days when a parent received a friendly phone call from a teacher when a child was accused of misbehaving. Now, a parent receives written notice to appear at a school disciplinary tribunal, a process with its own set of procedural rules, educators sitting as quasi-judges and severe consequences upon the finding of guilt.
Although these tribunals are different than court proceedings, the consequences can be just as serious with the possibility of a student being kicked out of school permanently.
With everyone recognizing the importance of an education and the effects of not graduating (both to the student and to the community), it is important for students and parents to know their rights when facing a school tribunal.
So Know Your Rights spoke with Prof. Randee Waldman, who has extensive knowledge in the area of school discipline.
Know Your Rights: What is your background and experience with juvenile justice?
Waldman: I am currently the director of the Barton Juvenile Defender Clinic, a project of Emory Law School. In this capacity, I supervise law students in their representation of young people in delinquency hearings in juvenile court and in special education and school discipline proceedings in the school system. Prior to coming to Emory in 2006, I was a senior attorney at Advocates for Children of New York (AFC). AFC is a non-profit organization dedicated to improving educational outcomes for all NYC school-children, including those most at risk for educational failure.
KYR: Many people are familiar with courts from watching TV. How is a public school’s disciplinary tribunal similar to and different from a traditional court proceeding?
Waldman: A public school disciplinary system is going to look very different from the typical court system. For suspensions that last less than 10 days, the school is not required to have a formal hearing at all. Instead, they must provide the student (and, typically, the parent) with notice of the charges, and they must provide the student with the opportunity to present his or her version of events. For longer suspensions, though, there is a requirement that the school have a more formal hearing.
In Georgia, individual school districts can structure these more formal hearings in a few different ways. Some will have an individual hearing officer, while some will have a panel of people who decide the case. Many people refer to any hearing as a “tribunal,” even though some technically are structured differently than a tribunal. No matter how the hearing is set up, the decision-maker is an employee of the school system who does not have any prior information about the student involved. Most of the time, these hearings are held in a conference room setting, either at the school itself or at a district office. In these hearings, some of the formal rules of evidence that apply in a courtroom are not followed. However, even without these rules, there are some things that will look very similar to a courtroom. For instance, each side will have the opportunity to explain the events through the presentation of witnesses. Additionally, all hearings will be recorded so that a transcript can be made.
KYR: In general, do students have the same rights in school tribunals as they do in juvenile court?
Waldman: Students have some, but not all of the same rights as they do in juvenile court. At a tribunal, students have the right to confront their accuser, to call and cross-examine witnesses and even to compel the presence of a witness through a subpoena. Students also have the right to remain silent a school tribunal. Finally, students have the right to appeal any decision that they disagree with. If a student has been identified as a student with a disability, either through special education services or a 504 plan, there may be additional rights.
KYR: What about the right to an attorney? Does a student have this same right in a school tribunal, and is it important to have an attorney if it is “only a school tribunal”?
Waldman: Students do have a right to an attorney at a school tribunal. However, if the student cannot afford an attorney, the district does not have to provide him or her with one.
It is important to have an attorney at a school tribunal because the outcome of school discipline hearings can have lasting impacts not only on students’ academic success, but also on the student’s school record. For instance, some college applications ask about whether the student was ever suspended during high school.
Also, if the student has been charged in court for the incident, what happens at the tribunal can be used at the juvenile or criminal court hearing as well. In these cases, it is even more important to at least consult with a lawyer before the hearing.
KYR: What is the most important thing for students and their parents to know about their rights in school tribunals?
Waldman: Students and parents should understand that they have the right to bring witnesses and to challenge the district’s version of events. They should also know that the district must bring at least one person who has first-hand knowledge of the events in question (witnessed the incident). While some “hearsay” is allowed in these hearings, it is not enough for a school administrator to tell the decider of fact what they heard happened from other people. Finally, it is also important to understand that there are 2 parts to every hearing – the guilt / innocence phase, and the discipline recommendation. Even when a child has committed an offense, sometimes the recommended punishment is too severe. It is important to present evidence at these hearings to demonstrate that the student should be permitted to return to school as soon as possible.
KYR: Do your rights differ from county to county and school system to school system?
Waldman: Certain procedures change from place to place, but the general rights to a due process hearing, to notice, to an attorney, to confront your accuser, to present and cross-examine witnesses and to appeal a decision remain constant.
KYR: Where can students and parents go to get more information about their rights?
Waldman: Check the school district website for their code of conduct. These codes of conduct usually have a section outlining the rights that are available at the hearing.
Also, Georgia Appleseed recently published a guide for pro bono attorneys about how to represent people at school tribunals. While the guide is geared towards lawyers, it is a useful document for anyone going to a tribunal. The guide can be found at: http://gaappleseed.org/docs/representing-students.pdf
If there is ever a concern that a student was disciplined differently based on race or national origin, or if a student was not provided with the appropriate discipline process based on disability, a claim can be filed with the U.S. Department of Education, Office for Civil Rights: http://www2.ed.gov/about/offices/list/ocr/docs/howto.html
Richmond County 2013-14 Code of Student Conduct
Columbia County 2013-14 Code of Student Conduct
Know Your Rights is a blog written by Gregory J. Gelpi, an Augusta attorney and owner of The Gelpi Law Firm, P.C. For more information about Greg, go to www.gelpilawfirm.com.
Know Your Rights is for informational purposes only. It is not legal advice. To obtain legal advice, speak with an attorney. The law varies from state to state and outcomes of individual legal matters can vary depending on the particular facts and circumstances. This blog does not create an attorney-client relationship between either the author of this blog or any attorney included in this blog and any reader of this blog.