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.”).