Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

legal_mailbag_transparentAs a high school administrator, from time to time I have to attend expulsion hearings. It is an unpleasant but necessary part of my job, and most hearings run smoothly because the student admits to his or her misconduct. Indeed, usually it is just a matter of helping the board of education come up with the right penalty and finding a way for the student to rehabilitate him- or herself. Last evening, however, I had a unique experience, and I would appreciate your letting me know whether the superintendent and board took the appropriate action under the circumstances.

Specifically, we in the administration were all there ready for the hearing. The student in question had admitted to me that he stole another student’s iPad, which we had found in his book bag. We were not expecting the hearing to take much time, and given the student’s complete lack of remorse, we were expecting swift and harsh justice from the Board. However, when the hearing was scheduled to start, neither the student nor the parent showed up. As far as I was concerned, the student had his chance and the board should have gone ahead and expelled the student. But my superintendent told the board to adjourn the meeting while he reached out to the family to find another date for the hearing.

Did he really have to do that? It was a pain in the neck to have to come out the first time, and now I have to be out for another evening? Shouldn’t the board have simply gone ahead and expelled the little thief?

Hard Liner

Dear Hard:

As much as I would like to agree with the compassion shown by the superintendent and the board, I must agree with you.

Students certainly have the right to due process before being expelled, but due process means that students have the right to a hearing before the board of education before expulsion, not that the board must hold the hearing. Rather, as long as a student has notice of the scheduled hearing, the administration and the board may proceed with an expulsion even if the student does not appear at the hearing.

In such cases, the administration should present testimony to the board to establish that the parent and student received notice of the hearing, which notice then gives rise to the inference that the parent and student have waived their right to attend the hearing. Then, the administration should go ahead and present the evidence that supports expulsion. The board can act on that information and expel the student.

That all said, both administrators and board members want to be fair. Accordingly, it is common to follow the procedure set forth above provisionally, and further direct the superintendent to notify the family of the board’s action and of the board’s offer to reconvene the hearing to give the student one more chance to participate in the hearing. Most often, the parent and student have already decided not to attend the hearing, but there are the rare occasions when there was miscommunication and the parent and student do wish to be heard. If so, the board should give them the opportunity. If not, the board should not require that you all come out again for another hearing.

Please submit your questions to: legalmailbag@casciac.org.