Superintendent Hearings

David V. Cirillo, Esq.

Assistant Director Personnel & Labor Relations July 30, 2009

Student Disciplinary Hearings

Long-term suspensions considered deprivation of student liberty or interest (protected under the 14 th Amendment), therefore requires “due process” of law.

NYS Legislature enacted Education Law Section 3214 to meet this minimum protection plus added additional procedural safeguards to protect student rights.

Short-Term Suspension

Student may be suspended by Superintendent or Principal for up-to five days.

No hearing required but must have an opportunity for an informal conference, prior to suspension, unless the student poses “continuing danger to persons or property” or “on-going threat to the academic process”.

Superintendent Hearings

Suspension of greater than five days must be done through a superintendent hearing.

Must be offered a hearing within the initial five days suspension period but hearing may occur after the five days if requested by the parent. The student may be suspended during that interim period.

Written Charges

Must be in writing.

Must be sufficiently specific to inform the student of the activities or incidents which will be the basic of the hearing.

Must be received within a “reasonable time” prior to hearing.

Written Charges

Written charges should include: • Date(s) on which the event(s) occurred.

• Place in general where it took place.

• Approximate time.

• General description of the action or conduct.

Public Hearing

Not required to be public.

In fact, given confidential nature, should be closed except to those that need to be present.

May be public hearing, if student requests, but not requirement to do so.

Transcript

A record must be kept, but a stenographic record is not required.

Section 3214 deems an audiotape recording to be sufficient.

Must be intelligible enough to permit meaningful review.

Designation of Hearing Officer

Superintendent may conduct the hearing or designate a hearing officer.

If the Superintendent designates a hearing officer, the designation must be done so in writing.

The hearing officers findings are advisory only.

Impartiality of Hearing Officer

Familiarity with the facts does not disqualify the hearing officer from serving.

Should be fair and impartial.

Participation in other connected hearings does not necessarily disqualify the hearing officer.

Impartiality of Hearing Officer

Discipline must be based on the record made at the hearing.

Must be imposed by the Superintendent.

If appealed to the Board of Education, only records from the hearing or the Superintendent’s decision rendered to the student may be used.

Subpoenas

Hearing officer has the authority to issue subpoenas to produce records or witnesses.

A school district is not required to produce an advance copy of witnesses to be called.

Conducting the Hearing

Two part process • Part one is the determination of guilt of the alleged misconduct. (Note: If student is a special needs student must conduct a manifestation review, prior to determining appropriate penalty.) • Part two determines the appropriate discipline for the student.

Part One of Hearing

Hearing Officer advises all parties of the presence of a tape recorder and begins the recording.

Discuss procedures.

State date and facilitate introductions for the record.

Part One of Hearing

Explain potential outcomes of the Hearing.

Explain appeal procedures.

Explain student rights.

If necessary schedule alternate dates if adjournment is requested.

Part One of Hearing

Have district provide foundation materials, i.e., Notice to Student of Disciplinary Charges, Letter appointing Hearing Officer, Copy of Student Code of Conduct, etc.

Read the Charges directly from the Notice of Hearing.

Part One of Hearing

Swear in any witnesses.

District will present it’s case first and must be limited to the facts or evidence specified in the allegation only.

After district presentation allow cross-examination by student.

Part One of Hearing

At conclusion of district case and cross- examination by student, the hearing officer must declare this portion of the proceedings closed and render a determination of guilt or non-guilt.

If found not guilty, hearing is concluded and no further suspension. If guilty move to Part Two unless a manifestation review is necessary first.

Part Two of Hearing

The district and/or student may introduce anecdotal records and be afforded an opportunity to rebut the same.

The discipline should be proportionate to the offense established and consistent with other discipline schedules imposed.

Appeals to the BOE

The Board of Education may review a Superintendent’s decisions if an appeal is requested by the student. The Board can decide on an appeal only after it has reviewed the entire record including the recording or transcript.

Appeals Beyond the BOE

The Board’s decision may be appealed to the Commissioner of Education.

The Commissioner of Education’s decision could be appealed through an Article 78 court proceeding.

Questions?