Since the sanctions against students for sometimes even minor behavior are so Draconian, I have often been able to successfully argue that if school, faculty and staff do not precisely follow the system’s own rules, charges against a student cannot be upheld.
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 [email protected] or (410) 337-5545.
