The following sections provide general guidance for attorneys representing students in an expulsion hearing.1  Expulsion cases happen within a very quick timeframe. Parents might not reach out for assistance until just a few days before the hearing is set so it is important to be able to assess the case status quickly to know the immediate next steps that need to be taken.

• 1As set forth above, a parent has the right to bring a lay advocate or lawyer to act as an advocate for a student at an expulsion hearing. See La. R.S. 17:416(C) (“At such hearing the student may be represented by any person of his choice.”).

Typically, there are three general types of arguments to be made at an expulsion hearing:

Substantive Arguments: The school cannot prove that the student committed the offense for which he/she is accused.

Procedural Arguments: The school did not follow state law and all of its own policies and procedures in expelling the student.

Discretion-Based Arguments: The school’s proposed punishment does not fit the alleged infraction and a lesser or alternative disciplinary action would be more appropriate for this student.

In some cases, an attorney may have one or more arguments in each one of these areas; in others, an attorney may only have arguments in one area. However, it is important for an attorney to consider all three areas of defense for any expulsion case, as well as to review the information received from the student and parent as well as the student’s records with an eye toward making each type of argument.

The goal of a substantive argument is to show that the school cannot prove that the student committed the alleged misconduct. In an expulsion hearing, the school district bears the burden of proving by a preponderance of the evidence that the student committed the offense. Typically, this is a low bar for school districts to meet. In many expulsion hearings, the district representative simply reads the expulsion packet at the hearing and the information is taken at face value and as true. However, there are still many substantive defenses that can and should be made where it is possible. It is particularly important to review the expulsion/disciplinary paperwork to identify the exact offense for which the student is being recommended for expulsion and review state law and district policies that may define that particular offense.

Some common substantive defense arguments that can be made here include: the alleged infraction did not happen; the student was not involved in the alleged infraction; the student was involved in an incident, but did not commit the offense of which he/she has been accused (for example, the student is accused of terrorizing or threatening but does not have the requisite intent that is an element of the offense); the student was involved in an incident but the incident is not one for which the school can discipline students (for example, the incident occurred off campus or was protected speech under the First Amendment); or the student was involved, but there was justification for the student’s actions such as self-defense or lack of knowledge. 

The goal of a procedural argument is to establish that the school district failed to follow all of its procedural requirements or meet all of its timelines. by comparing at the student’s records and information received from the parent and student with the law and district policies. Common procedural errors include missed deadlines, failed to provide the proper type of notice or hearing as required by due process, or failed to follow special education procedures. If procedural violations occurred, the argument would be that the expulsion is invalid and so the student should be immediately returned to school.

Some common procedural arguments include: the expulsion was not held within 15 school days as required by La. R.S. 17:416(C)(1) (or less if that district’s policies lay out an even shorter timeline); parent did not receive proper written notice of the recommendation for expulsion and the reasons for it by certified letter as required by La. R.S. 17:416(A)(3)(b)(i); parent did not receive timely notice of the hearing; and/or a Manifestation Determination Review was not properly or timely held for a student with a disability.1

Finally, discretion-based arguments present mitigating facts to show that the school district’s proposed punishment (i.e., the expulsion) is not the most appropriate discipline for this student under these particular circumstances. Instead, the school should impose a lesser or alternative punishment, such as a suspension, participation in a restorative justice program, participation in mandated counseling at school, transfer to a different school (if this is something the parent and student desire), and/or evaluation for special education to name a few. As set forth above, expulsion is only mandatory under Louisiana law for a handful of offenses—e.g., for the possession at school of a firearm, knife, or other dangerous weapon2  or for the possession or distribution of any controlled dangerous substance. Thus, for any other offense, it is within the hearing officer’s discretion whether to expel the student. The ask is for the officer to exercise discretion to order a lesser or alternative punishment for the student.

Information helpful when making a discretion-based argument may include: the student’s positive character and dedication to schooling and to the community; the student does not have extensive disciplinary history; the student makes good grades; the student is active in school activities and the student body; the student is active in the community or extracurricular activities; the student did not intend to cause harm or disruption or there were other mitigating circumstances and reasons for why the student did what he/she did; and the student is willing to participate in programs or services to address or remedy the behavior such as counseling or restorative justice. Presenting this type of information can be done effectively through witness testimony and/or letters of support from teachers, coaches, mentors, outside service providers such as doctors or counselors, or other members of the community. Even where the student is not going to testify at the hearing, the parent or other people who know the student can talk about the student’s future goals, why the student wants to return to school, and the steps the student and family are taking to ensure behavior does not recur.

• 1For a full explanation of the heightened disciplinary protections for students with disabilities, see Section 8.5.
• 2Note that even for these offenses, La. R.S. 17:416 provides some leeway for discretion on a case-by-case basis. See La. R.S. 416(C)(2)(a)(1), (b)(1), (c)(1) (“However, the superintendent may modify the length of such minimum expulsion requirement on a case-by-case basis, provided such modification is in writing.”).

There are a number of important steps that need to be taken in order to prepare for an expulsion hearing. The first step is to gather all the records, including those pertaining to the alleged incident as well as the student’s cumulative education file. The parent should have been given an expulsion packet from the school, as well as notice of the recommendation for expulsion, and may have been given other papers as well. Although it is important to get everything that was given to the parent, it is also important to request the expulsion packet (and all other records related to the incident1 ) directly from the school district, as the school may not have provided the parent all the proper paperwork. It is likewise important to request the student’s other educational records including all previous discipline records, the student’s academic records, grades, progress reports, attendance records, and any special education/Section 504 records.2  Finally, it is important to establish as soon as possible if student has an IEP or 504 Plan because then there are important additional protections to which the student is entitled.3

Before the hearing, an attorney should research and become familiar with state law—La. R.S. § 17:416 in its entirety—as well as the specific school district’s handbook/code of conduct and its discipline policies and procedures. It is important to compare the law and policies to the facts in the case at hand and identify any procedural violations, as well as to look at what the code of conduct says about the alleged behavioral infraction of which the student is accused, how it is defined, and what types of disciplinary consequences the school can impose for the particular infraction.

In addition, hearing preparation must include interviews of both the parent and the child, including specific details such as: When and where did it happen? Who was involved? Were there any witnesses? Did any meetings take place with school officials afterwards? When did these meetings take place? Who participated in the meetings? Did the student write a statement about the incident? Were there any arrests as a result of the incident? When and how did you get notice of the expulsion? During the interview, an attorney should ask questions about the student’s general academic, disciplinary, and extracurricular history. In an ideal world, an attorney would have several opportunities to interview both the parent and student to develop a good rapport and relationship and get the necessary information, but because expulsion hearings are so time-sensitive, it is important to get as much information as possible in the first interview.

It is very important to interview the child separately from the parent when discussing the incident. No matter how good of a relationship the parent and student have or how forthcoming it seems like the student is being, it is best practices to ask the parent to leave the room at this point. A child may relate a very different story once the parent leaves the room. If the parent refuses to leave the room, the attorney should explain that speaking with the student alone is a crucial part of representation. When interviewing the child, it is important to remember that interviewing youth is different than interviewing adults. When interviewing a child, an attorney should explain the lawyer’s role, ask open-ended questions, and avoid interrupting the client or speaking too much about the attorney’s own perspective. In addition to the incident, the interview should also explore the child’s strengths and interests through questions about the child’s favorite school subject, participation in sports or other extracurriculars, hobbies, future plans, and anything of which the child is proud.

Another important part of the first meeting is to inquire about the clients’ goals, i.e., what outcome the clients want from the expulsion process. For example, the clients may want the student to stay at the student’s current school, but they may also be interested in transferring to a different school or placement. Note that although the student may be the client for the expulsion hearing, the parent/legal guardian is the educational rights holder and ultimately retains the authority to decide where the student goes to school. Thus, it is helpful to engage in a collaborative decision-making process with the student and the parent about the goals of the representation and any alternative resolution/placements. Then, in any advocacy with the school district, the attorney may be able to explore possible resolutions other than moving forward with the expulsion hearing or with an ultimate decision of expulsion.

Investigation of the incident is another necessary step. A student facing an expulsion has the right to present documentary evidence at the hearing and to bring witnesses to testify on the student’s behalf. An attorney should work with the parent and student to identify any possible witnesses for the hearing. This would include both witnesses to the incident/factual allegations, as well as witnesses who can testify to the student’s overall good character and commitment to obtaining an education. It may be helpful to have the student’s family make the initial contact with potential witnesses, particularly if the witnesses are other students or school staff, to see if they are willing to support the client at the hearing. A witness who is not available or who is unwilling to testify in person can submit a letter to the Hearing Officer in support of the client. It may also be helpful to read out loud particularly powerful or helpful letters or excerpts during the hearing.

Finally, the attorney will need to prepare all documentary evidence, client and witness testimony, and opening and closing statements. Documentary evidence may include relevant records from the expulsion packet and/or student’s education file and any letters of support or witness statements. An attorney should always bring copies for all parties present at the hearing; some districts require parents to provide this information in advance, so it is important to pay attention to district policies. Additionally, an attorney should prepare the clients and any witnesses to testify at the hearing and practice both direct and cross-examination questions. Any witness may be subject to cross-examination type questions from both the school district and the Hearing Officer.  

• 1A template for requesting records related to a specific disciplinary incident is provided in Section 9. There is often video footage of incidents that occur at school. The U.S. Department of Education has issued specific guidance that video footage can be student records under FERPA. See FAQs on Photos and Videos under FERPA, U.S. Dep’t of Educ.
• 2A template for requesting a student’s cumulative educational file is provided in Section 9.
• 3For information on these heightened protections, see Section 8.5.

Because expulsion proceedings are only very generally laid out in state law, school districts have a lot of discretion in the design and implementation of their expulsion hearing procedures. As such, each school district’s expulsion hearings look a little different. Most school districts have a Hearing Officer who presides over the expulsion hearing and makes the ultimate ruling. The Hearing Officer usually explains the structure and rules of the proceedings at the beginning of the hearing. Because each school district’s expulsion hearing process is different, it is advisable to consult with any attorneys or advocates who have participated in expulsion hearings in that particular district.

Generally speaking, at the beginning of the hearing, both sides should have the opportunity to make an opening statement. However, depending on the district, an opening statement may need to be requested. The opening statement should set forth the theory of the case and provide the Hearing Officer with a roadmap of the points and evidence that will be introduced.

The school may or may not want to make an opening statement. Additionally, it may be best to present any procedural deficiencies (for example, if the hearing has not been held within the requisite 15 days or the parent failed to receive proper notice) as a preliminary matter before either side presents its case and to ask for the expulsion recommendation to be revoked and the student to be returned to school. While it is important to make these arguments, they are unlikely to stop the hearing, and so it is necessary to be prepared to continue.

The school presents its case first. A representative—typically a principal, vice principal, or dean—presents the school’s evidence in favor of expulsion. Oftentimes this merely consists of the school representative reading directly from the expulsion packet, but it could also include the presentation of witnesses to testify in support of the school’s expulsion recommendation. The Hearing Officer may ask questions of the school representative and any witnesses. Cross-examination may be helpful, but the Hearing Officer may not allow it.1  No statutory right to cross-examination in school discipline proceedings in Louisiana, and some courts have held that Louisiana students’ due process rights were not violated when they were not able to confront or cross-examine school witnesses.2  If the Hearing Office does not allow cross-examination, the attorney should object for the record. Some school districts attempt to prevent the attorney from speaking altogether, limiting the attorney’s involvement to consulting with the parent and providing advice in sidebar conversations while the parent answers questions and presents evidence. Limiting the attorney’s role in this manner is a violation of procedural protections contained in state law that guarantee the student a right to “be represented by any person of his choice.”3  In that situation, the attorney should vehemently object and note that the plain meaning of the term “represented” means students are allowed to have anyone they choose speak on their behalf rather than simply be present or advise them privately during the hearing.

After the school presents its case, the attorney can put on the student’s case through the presentation of documentary evidence and possible witness testimony. One important thing to decide before the hearing is whether or not the student will testify at the expulsion hearing. This can be a tough decision with benefits and downsides to either choice. A student who can testify to his or her side of the story in a compelling and credible way can be very persuasive to a Hearing Officer. Hearing Officers often care a great deal about hearing directly from and being able to question the student. Thus, even though in an ideal world it should not, having the student decline to testify could negatively influence the Hearing Officer’s view of the matter. However, these potential benefits must be weighed against the real risks and downsides of having the student testify. Particularly where a student has been arrested for the same incident involved in the disciplinary proceeding, it is most likely not in the student’s best interest to testify as any statements made at the discipline hearing can be used against him/her in the criminal case. Note that it is always good idea to consult with the student’s criminal/juvenile defense attorney, especially before the student testifies at an expulsion hearing.

Upon request, the Hearing Officer may allow each side to present a closing argument. If allowed, a closing argument should ask that the expulsion decision be reversed for all the reasons presented during the hearing (the substantive, procedural and mitigating factors arguments) or in the alternative that the Hearing Officer give the student a different disciplinary consequence (and provide supporting reasons for doing so). The Hearing Officer may make a decision at the conclusion of the hearing, but more likely, the district will send a written decision by mail after the hearing. The written decision does not typically make findings of fact or give reasons for the decision, but simply states whether the Hearing Officer has decided to uphold the recommendation for expulsion or not and should lay out the terms of the expulsion or alternative disciplinary consequence.

If the parent is considering appealing the Hearing Officer’s decision, the attorney should make a written request for the recording or the transcript of the hearing. Because of the very short timelines for appealing a Hearing Officer’s decision, it is advisable to plan in advance with the family whether the representation will continue at any review or appeal stages. If the representation will continue, it may be helpful to begin to prepare the written request for the School Board’s review of the Hearing Officer’s decision and even possibly the state court complaint as soon as possible after the expulsion hearing is over.  

• 1In some districts the Hearing Officer will instruct the parent and their attorney that if they want to ask questions of the school’s witnesses, they can tell the Hearing Officer what information they want to know, and the Hearing Officer can decide to directly ask the witness if he or she feels it is warranted.
• 2See, e.g., Whiteside v. Kay, 446 F. Supp. 716 (W.D. La. 1978); Bonner v. Lincoln Par. Sch. Bd., 28993-CA (La. App. 2 Cir. 12/11/96), 685 So. 2d 432.
• 3La. R.S. 17:416(E)(1) (emphasis added).