School Disciplinary Hearings
Over the past twenty-five years, more and more school behavior has been criminalized; in the era of “zero tolerance,” what began with trying to eliminate guns and drugs from schools has spread to a whole host of behaviors often quite typical of adolescence.
A child who is facing prosecution in Juvenile Court for a school-related offense will be simultaneously facing a school disciplinary process related to the same incident. There are fairly short time frames and deadlines by which conferences and hearings must be held, and so the disciplinary process often moves much more quickly than the Juvenile Court. Sometimes children will be brought before the Juvenile Court months after an incident has occurred, when the disciplinary consequences have long since been completed.
Criminal activity that occurs on campus can fall into one of two categories: discretionary removals, and mandatory removals. With discretionary removals, the school has the ability to remove a child to an Alternative Education Placement (AEP) for up to a certain amount of time, but they don’t have to. Mandatory removals are mandatory, but usually the amount of time of the removal is negotiable. Similarly, certain offenses warrant discretionary expulsion; others mandatory expulsion. With expulsion, there is a due process hearing held where a child can be represented by an attorney or another representative who is not a school employee. With removal (where the child can return to the school after the removal period is complete), a conference is held to discuss whether the child committed what is alleged, and, if so, what should happen as a consequence. Attorneys can participate in removal conferences, but there is no absolute right to question witnesses as there is in an expulsion hearing.
We advise that kids and their families consult an attorney regarding the school disciplinary process as well as the court involvement because the two can potentially affect each other. In particular, at the school level, the child will be asked to speak at the conference/hearing. These are statements that can potentially be used against them, both in the disciplinary proceedings, and, later, in the juvenile court proceedings if the need should arise. When facing potential juvenile charges, we advise clients NOT to make a statements during disciplinary proceedings, since they are not protected. Additionally, the school proceedings afford the attorney an opportunity to hear from some witnesses (maybe) or at least hear more detail about the school’s allegations that will come up in a subsequent juvenile case. If an attorney can get involved at this stage, it is a great opportunity for early discovery and investigation.
Note: if an attorney does get involved, the school’s attorney will be called in to represent the school district’s interests. In some cases, this is helpful; in other cases, schools become intimidated and defensive when parents bring in attorneys and stop working with the family in any collaborative way thereafter. Even if ultimately the attorney and parents decide it is best that the attorney does not attend a conference, we hope to prepare parents to ask the right questions and protect their child from making potentially incriminating statements.