8.4.4 Advocacy at and after the Expulsion Hearing

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).