For example, in reaction to numerous cases where I successfully challenged expulsions and suspensions due to a failure of the school to timely provide parents with the charges and evidence against students, the rules now provide that within twenty-four hours of the hearing, “[t]he student and the parent/guardian shall be notified . . . of the nature of the charges, [and] the evidence and witnesses upon which the charges are based.”  Some Designees take the position that the parent, student or attorney must ask for this information in order to gain the protection of the twenty-four hour rule.  I always advise my clients to ask for this information to avoid any dispute, but it is my position that you do not have to ask for what the school system’s own rules require it to give you.  In essence, this mirrors the constitutional standard that criminal prosecutors must provide all exculpatory evidence, (i.e., evidence tending to show you are not guilty) to the defense.

Another area of fruitful inquiry is whether or not anything seized as a result of a search is admissible.  Baltimore County Public School rules require that a third person be present when a student is searched.  If the School Resource Officer or school administrative staff search a student without another staff member being present, that search is invalid and anything found in that search cannot be used against the student.  This is the aptly named, “Fruit of the Poisonous Tree Doctrine.”  If you do not bring this issue up, neither the school nor the Designee will raise it on your child’s behalf.

It is also worthwhile to challenge the school’s “scope of authority.”  If a student is arrested off campus, even by the School Resource Officer, for possession of drugs, a strong argument can be made that that behavior is not within the school’s scope of authority, and should not result in a suspension or expulsion.  It is harder to make this argument if a field trip or other school sponsored activity is involved.  Use of social media off of school property often gets students into trouble.  Again, any use should be carefully examined to see whether or not a scope of authority argument can be made.

If the student involved has an Individualized Education Plan (IEP), or a plan pursuant to Section 504 of the Rehabilitation Act, then any expulsion or suspension hearing is not valid unless there has first been a manifestation hearing.  The manifestation hearing is to determine whether or not the student’s behavior was a “manifestation” of their disability.  For example, I actually had a case where a student with cerebral palsy was charged with striking a teacher who was trying to restrain the student.  Medical evidence was easily produced to demonstrate that the student was unable to control her movements.  That case was quickly dismissed.  More commonly, however, is the case of a student who does something impulsive who is also diagnosed with ADHD.  Those cases depend heavily on expert witness testimony and the specific facts.  For example, it is one thing to use ADHD as a manifestation defense if a student without thinking writes something negative on the board about another student or faculty member.  It is more difficult to raise ADHD as a defense if a student gets into a fight with another student or a teacher.

For more information concerning any of these issues, please do not hesitate to contact me at cgold@carlgoldlaw.com or (410) 337-5545.

Once your client has been charged with an infraction of The Baltimore County Public Schools Student Handbook and the Principal unilaterally decides it is serious enough to warrant a hearing, the Principal refers the matter to one of the Superintendent’s Designees. They are spread out geographically so  where the student attends school will determine which Designee hears the case. The hearings are informal and testimony is taken without an oath. The Principal or Vice principal reads, out loud, an incident report and statements from faculty and students. Unless you obtain their attendance they will not be present for cross examination. There is no subpoena power so you can not compel their appearance. After the school has presented its case you may make a motion to dismiss. Grounds can include due process violations, illegal search or an improper charge. If your motion is denied it is your opportunity to present your case. Your student still retains 5th amendment privileges  but some Designees will still try to coerce your client to testify. Two concerns reoccur. Your client has most likely already given a written statement–no Miranda warnings apply unless the offense also involves a criminal charge. Additionally, the School Resource Officer (SRO) may be present and SRO is simply a fancy name for the police officer assigned to the school–so be careful. Testimony your client gives at this hearing could be used against her in later proceedings. Witness testimony on your side is permissible but parents of other students are often reluctant to allow their children to testify for obvious reasons and other faculty are similarly intimidated. When you can convince them to attend, the testimony can be very powerful because the Designees understand the pressures involved. Just like with judges, each Designee has his own quirks, sensitivities and preferred ways to handle the hearing so do your homework. My next post will include some of the strategies to increase your likelihood of success and how to appeal if the hearing does not go well. Contact me if you have any questions, cgold@carlgoldlaw.com.

If your child is caught up in one of these incidents all is not lost. Each county, and sometimes each school has its own rules, and I am often able to get these charges dismissed, or at least ameliorated when the school does not follow its own rules. For example, there are specific parameters governing the search of a student which extend to the vehicle he or she came in. In several ways these are more strict than normal criminal rules for a search. If the school does not follow these rules exactly, any evidence seized–drugs, weapons, pills, alcohol–may not be used against the student. Scope of authority issues are also routinely raised–was the drinking all off campus? Did the alleged intoxication cause a disruption at the school event? Another issue is whether the school followed its own rules in providing notice of the charges and evidence as required by the school handbook.  Finally, if you think your child was not indulging, take him or her for a drug screen right away.