Education Rights Center
at Howard University School of Law
A Research Center Promoting Educational Equity for All Students
Notice and Opportunity
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The most basic right students have in discipline is the right to notice of what they are accused to have done and an opportunity to respond to that accusation. How formal that notice and opportunity to respond must be vary depending on circumstances. The text below and links to other pages further explain these rights. |
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| Notice Before suspending or expelling a student, a school must give that student notice of what he or she is alleged to have done, as well as the specific rule that the school claims that the student violated. If the student denies any wrongdoing, the school must further provide him or her with evidence that supports its accusation. The purpose behind requiring schools to give students notice is to ensure that students have adequate time and information to prepare and present their side of the story. When a student is facing a minor punishment, such as a suspension of ten days or less, a school may move from giving notice into an informal hearing without any delay. However, when a student might be excluded from school for longer than ten days, a school should give the student more time to prepare, including notice of when and where the hearing is to take place. Many states require the notice to be in writing, especially for long-term punishments, but this is not a uniform requirement. Some states also require that both the parent and the student receive notice, but this also varies from state to state. You will need to check the state specific rules within this website to confirm these points. However, regardless of contents of the notice or whether it is in writing or oral, schools should provide the notice in the primary language of the student’s family, if that language is not English. |
| Student's Right to Present His or Her Case One fundamental requirement of a due process hearing is an individual’s right to present his or her case before being deprived of a right. This right applies to students in disciplinary proceedings. Once the school has presented its case against a student, the student may then present his or her side of the story, as well as evidence in support of his or her case, in front of the decision maker. Some states and school districts even allow students to do things such as call witnesses to testify in their defense. Moreover, because the student has the right to present his or her side of the story, simply calling the parent to explain what occurred, without offering the child a chance to defend him or herself, is insufficient The extent of the rights that a student is entitled to when presenting his or her case depends on the severity of the punishment and the burden that the disciplinary proceeding will have on the school. As stated above, for less severe punishments, a simple conversation between a school official and the accused student is a sufficient opportunity for the student to tell his or her side of the story. However, this basic process would be insufficient to meet the requirements of a formal hearing. A formal hearing certainly requires more protections. Some protections such as an impartial decision maker, the presumption of innocence, and the right to an interpreter are almost uniformly required. But other protections such as the right to counsel, the right to cross examine, or the right to appeal vary depending on the punishment, the exact protection being requested, the extent to which that protection will assist in ensuring an accurate disciplinary decision, and the burden on the school in providing that protection. Each of the protections that students might receive are discussed individually below. Moreover, some states have specific laws that address these protections. You should consult the state specific rules within this website to confirm those rights that vary from state to state. |
| Informal v. Formal Hearings Depending on the severity of the punishment they are facing, students are entitled to one of two different types of hearings: informal or formal. In general, students are only entitled to “informal hearings” for short-term suspensions that last ten days or less. These hearings consist of an informal “give-and-take” between the accused student and the disciplinarian. This can be as simple as a short conversation between the student and the disciplinarian about what the student is accused of doing, the basis of these accusations, and the opportunity for the student to give his or her side of the story. Thus, for informal hearings, schools do not have to permit students to have an attorney present, to cross-examine witnesses, to confront their accuser(s), or to exercise any other rights generally granted in formal judicial proceedings. For harsher punishments, more formal notice and hearing requirements are required. Because the student has a greater legal interest in avoiding lengthier punishments, courts have tended to require additional protections here, even though these procedures are considered too burdensome for lesser disciplinary actions. These hearings more closely resemble a court proceeding, but do not necessarily guarantee students all of the same protections they would receive in an actual court. These formal due process hearings are not as formal as an actual court hearing because the administrative burden of certain procedures is still too high to require of schools. Thus, in formal due process hearings, students sometimes have the right to an attorney, to cross-examine their witnesses, to call their own witnesses, etc., but they do not always have these rights. More Details on Formal Hearings |
| Exceptions to Prior Notice and Response In general, schools must provide a student with notice and an opportunity to be heard before depriving the student of the right to attend school. However, an emergency exception to this rule exists when the student’s presence at the school poses an ongoing threat of disruption or an ongoing danger to the safety of others. In these emergencies, a school can suspend or expel a student before holding a hearing. However, the school must provide the student with notice and a hearing as soon as practicable after the punishment. In no instance should the delayed notice and hearing occur more than 3 days after the punishment. |