Elements of a Formal Hearing

• Impartial Decision Maker
• Right to Counsel
• Right to Confront/Cross-Examine Witnesses
• Permissible Evidence
• Right to an Interpreter

Whether a student has a right to seek the assistance of counsel in a formal disciplinary hearing depends greatly on the jurisdiction in which he or she lives.  Many courts have been hesitant to give students the right to present their case through an attorney in student disciplinary hearings, emphasizing the burden that requiring such a formal presentation would have on the school administration.  Some older court cases did afford students this right, but recent cases have moved away from this trend.  However, these recent cases have often reached a middle ground of requiring that, although a student does not have a right to present his or her case through an attorney, he or she does have the right to seek the assistance of a lawyer who can play an advisory role during the disciplinary hearing.  Thus, these lawyers can only give the student guidance, rather than perform the normal duties of an attorney, such as questioning witnesses.   In short, parents should keep in mind that the extent to which a student can rely on an attorney varies by state, and courts have yet to recognize that students have a general constitutional right to rely upon an attorney in school disciplinary proceedings.  Please consult the state specific materials to determine whether your particular state affords any rights in regard to counsel.

Generally, in a court proceeding, the accused has the right to confront his or her accuser and cross-examine witnesses that testify against him or her.  Like many other aspects of a disciplinary hearing, a student’s right to confront and cross-examine witnesses hinges on the competing interests of the student and the school.  Many courts have found this process to be unnecessarily burdensome on the school.  And those courts that have recognized a student’s right to confront accusers and cross-examine witnesses have only done so when there is a concern that the hearing officer may reach an erroneous decision unless these procedures are followed.  For example, if the credibility of a witness’ testimony is lacking, or when a witness or accuser seems to be motivated by malice or prejudice, an accused student is more likely to be entitled to confrontation and cross-examination. 

These circumstances, however, are narrow exceptions to the general rule that students are not entitled to the right to confront accusers and cross-examine witnesses in disciplinary hearings.  Courts adhere to this general rule for several reasons.  First, formalizing the hearing adds length and administrative burden on the school.  Second, given their regular interaction with the students, courts are willing to defer to school administrators’ judgment in determining the credibility of student accusers and witnesses.   These courts believe that if the administrator feels that the person testifying is trustworthy, there is no reason to add additional processes.  Third, given the confinement and close proximity of students, schools have an interest in protecting the anonymity of student accusers and witnesses.  Without anonymity, students may face threats of repercussion from the accused student and become unwilling to inform school administrators of infractions or potential threats in the future.  Requiring cross-examination and confrontation would eliminate schools’ ability to protect and encourage students who report information.

In short, the right to cross-examine or confront witnesses is rarely required.  The only exceptions occur in specialized circumstances where such procedures are necessary to arrive at the truth or a state law has specifically extended the right.

A student is presumed to be innocent in a disciplinary proceeding, until proven otherwise.  A school must establish a student’s guilt by “substantial evidence.”  This means the school must have enough evidence that a reasonable mind would find it adequate to support the school’s finding.  This is a more lenient standard than the “beyond all reasonable doubt” standard used in criminal cases.  Nevertheless, “substantial evidence” still places a burden on the school to prove a student’s guilt.   

However, the forms of “evidence,” or what counts as “evidence,” are broad in disciplinary hearings.  Because disciplinary hearings are not criminal trials, schools are not subject to the strict evidentiary standards that apply to trials.  Thus, schools may rely on any form of factual information that might serve as “competent and substantial” evidence of the student’s guilt.  This means that schools may, for instance, use the written statements of other students as evidence, as well as any other form of hearsays, during a student’s disciplinary proceeding.