Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Unbeknownst to me, one of the students in my school has been bullying another student so severely that expulsion seems to be the only appropriate response. The situation first came to my attention as the assistant principal in charge of student discipline when the parent and the victim came forward to allege such bullying. However, they did so only on the condition that the victim not be required to confront the student engaged in bullying in any sort of hearing.
I told the parent that I would do my best to honor that request, and I thought everything was fine because the accused student, though sullen, was cooperative and admitted to his misbehavior. However, the student’s lawyer just wrote me to say that the student is recanting his prior confession because – get this – I bullied him into admitting things that he didn’t do!
Without dragging the victim into the hearing, I want to go to the expulsion hearing and just tell the Board that this bad actor bullied the victim. But I have heard that would be hearsay, whatever that is.
Legal Mailbag is happy to report that the student’s change of heart will likely not help him evade responsibility for his conduct. But let’s start with your last question: what is hearsay?
Hearsay is a statement made by another offered for the truth of the matter asserted. For example, if one says “Joe told me X” to prove that X is true, that is hearsay. In court, the use of hearsay is strictly controlled, but in administrative hearings, hearsay is often allowed into evidence “for whatever it is worth.” However, hearsay is disfavored in both court and administrative hearings for one simple reason – it can be unreliable because the speaker whose statement is being used is not available for cross examination, either on the more specific facts of the situation or on the question of the speaker’s credibility or motivation.
There are exceptions to the hearsay rule, and it can get complicated. However, the hearsay rules strike a balance between allowing people to make their case, even if it involves hearsay, and assuring that the information is reliable. One of the exceptions to the hearsay rule is an admission against interest. The theory is that a person is unlikely to say something against their own interest (such as confessing to a crime) unless it is true. Accordingly, admissions against interest are admissible in court, even when the testimony is hearsay (“Joe told me that he committed the crime”).
Applying these rules here, it is clear that the student’s admission that he engaged in the conduct alleged will be admissible and reliable in any related expulsion proceedings, notwithstanding the student’s changed story. He will be free to claim that you bullied him into a false confession, and you will be free to respond to that absurd claim. The board of education (or hearing officer) will make a credibility determination, and Legal Mailbag is confident that your explanation will be accepted as the true version of events.
Two other quick points may be of interest. First, these rules do not apply when the question is whether a student should be suspended. As you surely know, the process that is due before an administrator can suspend a student is simply to inform the student of the allegation against him or her and to give the student a chance to explain. After hearing from the accused student, the administrator is free to assess credibility and rely on the statements of others to determine that a suspension is warranted.
Second, the courts are now more likely to permit hearsay statements to establish the truth of allegations against a student in a disciplinary proceeding. For many years, the leading case in Connecticut on the subject was DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972), in which the court ruled that relying on hearsay statements to expel a student violated his due process rights. More recently, however, citing issues of student safety and/or reluctance of students to testify, courts have held that specific circumstances may justify reliance upon student statements or other hearsay information in expulsion hearings. See E.K. v. Stamford Board of Education, 557 F. Supp. 2d 272 (D. Conn. 2008); Bogle-Assegai v. Bloomfield Board of Education, 467 F. Supp. 2d 236 (D. Conn. 2006); Danso v. University of Connecticut, 50 Conn. Supp. 256 (Conn. Super. 2007); Haney v. West Chester University, 2018 WL 3917975 (E.D. Pa. 2018). Rather than simply excluding hearsay statements in student expulsion hearings, boards of education should now ask whether the proceedings, including the admission of hearsay, are fundamentally fair to the student. If so, hearsay statements should be admitted.