May 2009 - Student Discipline Policies And Procedures

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

STUDENT DISCIPLINE POLICIES AND PROCEDURES

A recent student expulsion decision by the South Carolina Court of Appeals serves to remind districts of the importance of having student discipline policies and procedures in place that are sufficiently clear and comprehensive.  In Doe v. Richland County School District Two,the Court concluded that the lower court’s decision to overturn a student’s expulsion was proper because the student had been charged with an offense that was not clearly defined and for which there was insufficient evidence to establish that the offense had occurred.

In Doe, a female student was charged with committing a “sexual offense” as a result of having entered a boys’ restroom with a male student.  Sexual offense was listed as an expulsion offense in the District’s policy, but the term was not defined in any meaningful way.  At the District’s expulsion hearing, the only evidence presented to support the sexual offense charge was the testimony of two school administrators who had viewed a videotape showing the female student entering the restroom following a male student and exiting the restroom approximately one minute later.  The Court concluded that the District did not have sufficient evidence to establish whether the student’s conduct amounted to a “sexual offense.”

A number of lessons can be learned from Doe.  First, discipline policies should clearly define and/or give examples of what constitutes an offense.  In some cases, the definition of an offense is specified in state or federal law.  For example, state law now requires school districts to have a policy that prohibits harassment, intimidation, and bullying at school and, more significantly, to define and/or give examples of these terms consistent with the statute.  If a district has a distinct harassment, intimidation and bullying policy, or other policies on specific misconduct such as weapon possession or drug use, they should be consistent with and referenced in the district’s general discipline policies.

The range of possible disciplinary actions for each offense also should be listed in policy and should be realistic as to the actual penalty likely to be imposed. Specifically, the less serious offenses would not normally list the same range of possible penalties as the more serious offenses.  For example, if in-school suspension is not likely to be imposed as a penalty for a serious offense such as drug possession, then it should not be listed as a possible penalty.

Districts also should be careful to only charge a student with an offense for which the district has actual evidence that the offense occurred.  In situations such as in Doe, a lesser offense may have been the more appropriate charge, such as being in an unauthorized location and/or cutting class, based on the evidence available.  Courts are not likely to accept speculation on the part of an administrator as to what may have occurred, or what likely occurred, as sufficient basis for a charge.

With regard to expulsion hearings, the district has the burden of establishing at the hearing that the student committed the offense for which he or she is charged and, therefore, must present sufficient evidence to that effect. Districts should preserve and present at the hearing all relevant documents and other physical evidence, such as any videotapes of the misconduct in question.  With regard to witness testimony, State law specifies that students have, among other things, “the right to question all witnesses.” There are few cases interpreting whether this provision means that the student has the right to question only those witnesses the district chooses to have testify at the expulsion hearing and/or whether districts may use witness statements, rather than have witnesses testify, particularly where the witness is a student.  Courts in other states have concluded that a student must be given the names of witnesses and provided either a summary of their testimony or the opportunity to confront and cross-examine them at the hearing.  Because S.C. law specifically refers to “the right to question all witnesses,” however, our courts would likely interpret that provision to mean that witnesses must be available for questioning.  Consequently, districts should at a minimum require any staff members who witnessed or investigated the misconduct to appear and testify at the expulsion hearing, and also consider asking student witnesses to appear and testify, particularly if they are the only witnesses to the misconduct.  Prior to the hearing, students have the right to request a list of witnesses who are to testify on behalf of the district and to access the documents and physical evidence to be presented by the administration at the hearing.

When a student seeks review of an expulsion decision by the courts, as is the student’s right under State law, the transcript of the hearing conducted before the school board or designated hearing officer, along with copies of any documents introduced as evidence at the hearing, constitutes “the record” and is all that will be considered by the court. No new or repeat witnesses will be allowed to testify and no new documents can be introduced as evidence. As a result, it is critical that districts make an audio recording of the entire hearing, by such means as can be transcribed if the expulsion decision is appealed to the courts. A duplicate system for recording the hearing is preferred, in case of a mechanical malfunction of one of the recording devices. Additionally, a complete set of all documents and physical evidence presented at the hearing should be maintained.

Should you have any questions about the implications of the Court of Appeal’s decision in Doe, or need assistance in reviewing and revising your district’s student discipline policies, please feel free to contact this firm.