Hot Issues on Student Discipline

The process for the suspension of students has remained quite consistent for many years. There have been several decisions rendered by the new Commissioner of Education of which school districts should be aware when taking steps to impose long-term suspensions. The following provides guidance as to a few recent decisions that could impact the student disciplinary hearing procedures at your district.

Hearsay

Several years ago, the U.S. District Court for the Eastern District of New York held that a school district did not violate a student’s due process right to cross-examination when certain students had their written statements read into the record but were not called to testify. The court held that the school was not required to provide the identities of students when the charged student is reasonably considered to be potentially violent, and the school district was protecting the students’ identities to protect the students from possible retaliation.

In February 2022, the Commissioner held that this exception to a parent’s statutory right to cross-examination did not apply to the students who the district was trying to protect. The Commissioner further held that the exception “is limited to circumstances where: (1) a student witness’s identity is unknown to the student charged with misconduct; and (2) the school district ‘reasonably consider[s]’ the charged student ‘to be potentially violent’.” Therefore, if a school district intends to not call a student-witness with direct knowledge of the facts and instead rely upon the student’s written statement or report made to an administrator, it is recommended that, at the hearing, the administrator testify to facts explaining the school district’s position detailing the two aforementioned factors.

Credibility Determinations

In a recent decision, the Commissioner overturned a long-term suspension of a student who had consumed edible marijuana at school. The Commissioner held that even though the hearing officer found there to be competent and substantial evidence to support the charged conduct, the hearing officer “did not make any credibility determinations to resolve conflicting testimony regarding [the student’s] guilt.” While a finding of guilt implies a credibility determination, it is recommended that hearing officers and superintendents not only make a credibility determination in the written findings, but also explicitly make one on the record during the hearing.

Manifestation Determination

Students who have an IEP or 504 plan are entitled to a manifestation determination at a Superintendent’s hearing to determine if the violation of the code of conduct is connected to the student’s disability. In addition to other various concerns, the Commissioner of Education overturned a long-term suspension of a student because the manifestation determination was held prior to the Superintendent’s hearing. The Commissioner held “convening [a manifestation determination] before the guilt phase presupposes a student’s guilt.” Based upon this recent decision, it is recommended that manifestation determinations be held after a finding of guilt as to the alleged conduct but before the penalty phase commences. This process is consistent with the Regulations of the Commissioner.