Administrative Hearings: Preparation and Presentation

1. Administrative Hearings: Preparation and Presentation Steve Castro, Supervisor Mike Skiba, Supervisor Student Services Department Bakersfield City School District November, 2011

2. Presentation Goals Participants will learn about: • Steps to initiate an administrative hearing • Due process rights • Extending the length of the suspension • Home language requirements • Use of witnesses to include sworn declarations • Waiver of right to an administrative hearing and conditions under which there is no possibility of waiver • Offenses requiring mandatory referrals for expulsion • Preparing opening and closing statements • Preparing evidence, witnesses, and evidence to support a supplementary findings • Tips for testifying in an administrative hearing • Rules of conduct during the hearing • Documents used in an administrative hearing, providing these documents to the parent, and the sole possession exception to include use of notes in an administrative hearing • Possible outcomes following the hearing as determined by the administrative hearing panel

3. Suspension Due Process The potential for overturning a decision to expel begins with the school site suspension procedures. The principal or principal’s designee must: • conduct an informal conference (unless an emergency situation exists), during which the principal or principal’s designee must : • Inform the student of the reason(s) for the disciplinary action; • supply the student with the evidence against him/her; • give the student the opportunity to present evidence in support of his/her defense; • make a reasonable effort to contact the parent or guardian in person or by telephone, and • give the parent or guardian written notice of the suspension containing the correct education code(s) determined to have been violated.

4. Emergency Situation An information conference preceding a suspension may only be omitted if the principal or designee determines that an “emergency situation” exists. • An "emergency situation" involves a clear and present danger to the lives, safety, or health of pupils or school personnel. You must be able to articulate how this was determined. • If a student is suspended without an initial due process conference, both the parent/guardian and student shall be notified of the student's right to return to school for a conference. The conference shall be held within two school days, unless the student waives his/her right to the conference or is physically unable to attend for any reason. In such case, the conference will be held as soon as the student is physically able to return to school.

5. Suspension Due Process Special Education Students Students with a disability (students that have an Individualized Education Plan [IEP]) are afforded the following additional protections under the Individuals with Disabilities Education Act: • Parents shall be provided with a copy of all Special Education procedural safeguards and a notice of the decision to recommend expulsion on the day the decision to recommend expulsion was made. • The student shall be provided with a Free Appropriate Public Education during suspension. • The school shall hold an IEP team meeting for Manifestation Determination within 10 days after the decision to recommend expulsion was made and if the manifestation review team determines that a either of the below conditions are met, the conduct shall then be determined to be a manifestation of the student's disability and the student shall be returned to the placement from which he/she was removed: • Caused by or had a direct and substantial relationship to the student’s disability • A direct result of the district’s failure to implement the student’s IEP, in which case the district shall take immediate steps to remedy those deficiencies

6. Suspension Due Process (continued)Students on a 504 Accommodation Plan • Students that have a section 504 accommodation plan are also afforded the following additional protections: • parents shall be given a copy of all 504 procedural rights and a notice of the decision to recommend expulsion on the day the decision was made. • the student shall be provided with a “Free Appropriate Public Education” (FAPE). • the school shall hold a Team for Student Success (TSS) meeting to complete a “Compliance Review”* within 10 days after the decision to recommend expulsion was made and if the compliance review team determines that either of the below conditions are met, the conduct shall then be determined to be a manifestation of the student's disability and the student shall be returned to the placement from which he/she was removed: • The conduct in question was caused by, or is directly and substantially related to the student’s disability • The conduct in question was the direct result of the school district’s failure to implement the 504 accommodation plan, in which case the district shall take immediate steps to remedy those deficiencies *A “Compliance Review” is similar to a “Manifestation Determination”

7. Notifying Student Services • As soon as possible after the decision to recommend expulsion is made, fax a copy of the Notice of Suspension (suspension letter) (copy in Spanish, if home language is Spanish) and a copy of the front and back of the student’s emergency card to Dianna Dix, fax # 633-9736 and call Dianna at 631-4639 to give her any other intake information. • Check the emergency card to ensure that it is from the current school year, and has been signed by the parent/guardian. • Check the back of the emergency card for any possible 504 issues (e.g., asthma, ADHD, diabetes).

8. Section 504 Issues • Check the student’s emergency card and cumulative folder for any possible Section 504 issues. (i.e., asthma, ADHD, diabetes). • Hold Section 504 eligibility meeting. OR • Have your school nurse call the parent/guardian to check severity of the student’s possible 504 issue.

9. Extending the Length of the Suspension The superintendent or designee (i.e., supervisor of student services) may extend the student’s suspension until the expulsion hearing ONLY IF (Education Code Section 48911[g]): • The facts substantiate the student, if present at school or in an alternative school, would cause a danger to persons or property; OR • The facts substantiate the student, if present at school or in an alternative school, is a threat of disrupting the instructional process; AND • The meeting or contact with the parent to extend the length of the suspension is made before the fifth day of the suspension, and the student and the student’s parent(s) or guardian are invited to participate in the meeting.

10. Home Language When conferencing with parents use language the parent is likely to understand. Written notices (e.g., Notice of Suspension) for families who speak Spanish as their primary language must be sent in both English and Spanish (Education Code Section 48985).

11. Mandatory Recommendation and Mandatory Expulsion“The Big Five” The principal or administrative designee shall immediately suspend and recommend the board expel any student found at school or at a school activity to (Education Code section 48915 [c]): • Possess, sell, or otherwise furnish a firearm. • Brandish a knife (as defined in Education Code Section 48915 [g]) at another person. • Unlawfully sell a controlled substance as defined in Chapter 2 or Division 10 of the Health and Safety Code. • Committed or attempted to commit sexual assault or committed sexual battery. • Possessed an explosive as defined in the United States Code. ◊ No possibility of waiver, hearing only.

12. Recommendation for Expulsion Unless the principal finds that the expulsion is inappropriate due to the particular circumstances, the principal shall recommend a student’s expulsion for any of the following acts committed at school or at a school activity (Education Code Section 48915 [a]): ◊ Causing serous physical injury to another person, except in self-defense. • Possession of any knife as defined in Education Code Section 48915 (g), explosive, or other dangerous object of no reasonable use to the student. • Unlawful possession of any controlled substance. • Robbery or extortion. ◊ Assault or battery upon any school employee ◊ No possibility of waiver, hearing only.

13. Waiver of Administrative Hearing • Unless the student’s act(s) requires a mandatory referral for expulsion as listed in Education Code Section 48915 (c), any parent or legal guardian may request to waive the right to an administrative hearing. • A parent or legal guardian may waive their right to an administrative hearing only after receiving all applicable due process rights. • A request to waive the administrative hearing will include a written acceptance by the student and the student’s parent or legal guardian: (a) to waive the administrative hearing and (b) of the involuntary transfer, rehabilitation plan, and other relevant conditions as specified and documented by a district administrative hearing officer.

14. Opening/Closing Statements The opening statement provides a rationale for recommending the student for expulsion and summarizes what the district intends to prove in the hearing. The closing statement is intended to summarize for the hearing participants what the school representative believes he or she proved with substantial evidence in the student’s hearing. Examples of opening and closing statements can be found in the Student Services Handbook on pages 14 & 15.

15. Opening Statements Less Effective Opening Statement The district will prove today that Joe Likestosmoke unlawfully possessed, used, sold, or otherwise furnished, or was under the influence of, any controlled substance listed in the Health and Safety Code, an alcoholic beverage, or intoxicant of any kind. More Effective Opening Statement The district will prove today that Joe Likestosmoke violated Education Code 48900 (C) by unlawfully possessing a controlled substance, namely marijuana, on his way to school and while on the school campus.

16. Closing Statements Less Effective Closing Statement We think Joe Likestosmoke unlawfully possessed, used, sold, or otherwise furnished, or was under the influence of, any controlled substance listed in the Health and Safety Code, an alcoholic beverage, or intoxicant of any kind. We will let the panel determine whether he did that and what should be done with him. More Effective Closing Statement The district provided substantial evidence today proving Joe Likestosmoke unlawfully possessed a controlled substance, namely marijuana, on his way to school and while on the school campus. The district recommends Joe be expelled.

17. OPENING AND CLOSING STATEMENTS • Opening and closing statements are not evidence. • The decision of whether to expel cannot be made on this information.

18. Record Access • In the administrative hearing process, a discovery period is not recognized. Attorneys, representatives, or staff have no established legal privilege to question and discuss the pending testimony with the other side’s witness(es). BCSD staff may give a description of the general administrative hearing process to the accused student’s representative and the type of questions which will be asked in the hearing may be reviewed. • The accused student’s representative may want the district witness(es) to be identified so they may discuss the case with these witness(es) prior to the hearing . . . THIS CANNOT BE DONE LEGALLY! • Providing the name, address or telephone number of the witness(es) is unauthorized record access (Education Code Section 49076).

19. The Use of Notes in Administrative Hearings Pupil/Student record defined in applicable law: any item of information containing personally identifiable information about a student and maintained by the district employee in the performance of his/her duties (BP 605.7). If a staff witness stores identifiable information about a student, the staff member must be prepared to release a copy of these notes (as a student record) or maintain the notes under the rules of “sole possession.” To claim a record is in your “sole possession” and it is not subject to release, the employee must avoid revealing the contents of the record to another person in any manner to include refraining from showing the notes to another person, reading the notes, or providing an oral description of the contents.

20. Establishing Evidence • Upon establishing that there is reasonable suspicion that a student committed a violation of the California Education Code and District Discipline Code, the principal or designee must: • Interview all the relevant witnesses • Collect any physical evidence • Note the student’s admission to the charges • List specific student behaviors involved • Take a picture of the contraband when such evidence cannot or should not be brought to the hearing (Place a ruler next to the item to provide size perspective.)

21. Preparing Evidence for the Administrative Hearing A decision to expel a student must be based upon substantial evidence relevant to the charges proven in a hearing (Education Code Section 48918 (f)). The district cannot expel a student solely based on hearsay evidence.

22. SUBSTANTIAL EVIDENCE Substantial evidence is evidence that proceeds from the personal knowledge of the witness, simply stated, substantial evidence is something that a witness saw, felt, or heard. Examples of Substantial Evidence: • Witness heard the perpetrator threaten the victim. • Witness saw the perpetrator hit the victim. • Victim felt the perpetrator hit, kick, or push him/her.

23. HEARSAY EVIDENCE • Under California law, "hearsay evidence" is evidence of a statement that was made other than by a witness at the hearing, and that is offered to prove the truth of the matter stated (California Evidence Code Section 1200 [a]). • Hearsay is defined as evidence that does not proceed from the personal knowledge of the witness, but from the mere repetition of what he has heard others say.

24. EXAMPLES OF HEARSAY EVIDENCE • The vice-principal was told by two students that Student X attacked Student Y. • The campus supervisor testifies in a hearing that Student X told him/her that he saw another student smoking marijuana.

25. Identification of Witnesses • The hearing process does not allow BCSD students to be identified by name if they are not present at the hearing. However, there are two exceptions: • The student recommended for expulsion and a student participating in the hearing (e.g., witness) may be identified. • In consideration of the student record laws, the recommended procedure for referencing students who will not give oral testimony (are not at the hearing) is to label the students (student X, student Y, etc.).

26. Use of Witnesses Direct witness testimony in the administrative hearing regarding the event or actions that led to a recommendation for expulsion is necessary. • Before transporting a student to the Education Center to testify, the principal or designee obtains parent permission on a district field trip form and documents this contact on the Bakersfield City School District Charge Sheet. • Special rules apply to witnesses testifying in a hearing involving sexual assault and/or sexual battery charges (Education Code Section 48918 [h]). • In such cases, the principal or administrative designee should ask the supervisor of student services for a review of how the administrative hearing process will change.

27. Use of WitnessesE.C. 48900.2 E.C. 48900.2 – Committed sexual harassment as defined in the Education Code – Grades 4-8 • To prove this charge, the presenter must bring a, female adult witness who will be asked by the hearing officer to answer the following question: “As a person of the same gender, if the conduct exhibited by this student was directed at you, would it have had a negative impact on your work or academic performance?”

28. Preparing Witnesses • Before transporting a student to the Education Center to testify, the principal or designee obtains parent permission on a district field trip form and documents this contact on the Bakersfield City School District Charge Sheet. • Bring witnesses that will provide substantialevidence. • Keep the number of witnesses that you bring to a minimum. • Review the witness’s testimony prior to the hearing. • When in the hearing, seat yourself between the perpetrator and your student witness(s).

29. Witness Testimony • Have the student witness(s) identify themselves by name, grade, and school they attend. (Adult witnesses should give their name and job title or relationship to the school.) • Have the witness(s) testify as to the events of the incident. • Ask questions of the witness(s) for clarification of their testimony, or to bring out substantial evidence that they have first hand knowledge of, but may have omitted. • Avoid asking leading questions of the witness(es). • Avoid asking questions of the witness that require information that the witness would have no knowledge of.

30. Leading Questions Leading questions generally follow one of two patterns: • A question which is asked of a witness regarding information that the witness has not mentioned in their testimony, or • A question which is designed to coerce the witness into answering in a pre-determined way.

31. Leading QuestionsExample 1 During testimony by a student victim of an attack, the witness makes no statement regarding the number of times the attacker hit him/her. • Leading question: “The attacker hit you four times, didn’t he?” • More effective question: “How many times did the attacker hit you?”

32. Leading QuestionsExample 2 • During testimony by a student who witnessed an attack, there has been no testimony regarding where the witness saw the attack happening. • Leading question: “While you were walking home from school, you said you saw the attacker kick the victim?” • More effective question: “Where were you when you saw the attacker kick the victim?”

33. Tips for Testifying in an Administrative Hearing • Know the specific charge(s) the district intends to prove (e.g., possession of a knife). • Separate substantial evidence (namely, [a] what the student admitted and you heard and [b] what you personally saw or heard) from what another person told you (hearsay). • Organize the facts (i.e., the substantial evidence you have) to prove the charge against the student. • Avoid speculation, rumor, and giving opinions. • If you don’t know what to do, ask the hearing officer. • Portray a caring image. • Answer politely, directly, and in a straightforward manner. • Speak clearly and loudly. • Remain polite and impersonal even when the cross-examination process puts your memory and credibility to the test. • If there is an objection, wait until the hearing officer rules on the objection and instructs you whether to answer or not.

34. Tips for Testifying in an Administrative Hearing (cont.) During direct and cross-examination: • If you do not hear a question, do not answer. (Student representatives will often make a statement rather than ask a question.) • If you do not understand the question, ask for it to be restated. • Answer only the question you have been asked, then stop talking. • If you do not know the answer to a question, simply say “I don’t know.” • Respond to the questions narrowly; do not volunteer any information. It is another person’s job to ask follow-up questions, if necessary.

35. Sworn Declarations Sworn declarations (also called written witness statements) in lieu of direct oral testimony in the administrative hearing are unacceptable except in certain circumstances. A fundamental legal principle prescribes that the student recommended for expulsion has the right to know his/her accusers and has the right to confront and cross-examine his or her accuser (John A. v. San Bernardino, 1982). If a witness is not present at a hearing, these rights cannot be guaranteed.

36. Sworn Declarations Continued • Sworn declarations are used only if there is proof of an unreasonable risk of psychological or physical harm to the witness, should this witness attend the hearing. The Education Code Section and board policy empower the hearing officer to determine whether disclosing the identity of the witness would present a harmful risk. • A parent refusal to allow attendance or a student refusal to attend an administrative hearing does not, alone, constitute an unreasonable risk of harm. • Alternatively, the decision of whether to permit a sworn declaration will be reached following a principal and hearing officer review that factually establishes risk factors for the witness. • The school presenter will briefly list the factors which verify an unreasonable risk of harm to the witness exists and insert the date of consultation with the hearing officer on the sworn statement form. The witness will write his or her statement on this same form. The hearing panel members will vote, prior to, or during the hearing whether to accept the sworn declaration. • The school presenter shall avoid referencing a witness by name in the administrative hearing if a sworn declaration is submitted by the witness.

37. Conduct in a Hearing • No personal comments during the hearing • No facial responses to any portion of the hearing • No assigning of guilt • Do not respond to angry parents • Ask questions designed to acquire substantial evidence • Avoid speculation, rumor, and giving opinions • If you are unsure what to do, ask the hearing officer • Speak clearly and loudly (hearing is recorded) • Remain polite no matter the circumstances The hearing officer will control the hearing and all issues or problems that occur in the hearing.

38. Participating in the Administrative Hearing The school representative: • Provides an opening statement • Enters exhibits into the record • Helps identify each of their witnesses • Asks questions to place the witness at the scene • Obtains a specific description of the behaviors performed by the accused student • Cross-examines the accused student and their witnesses • Testifies to present substantial evidence and that the student received due process • Provides facts to support supplementary findings (p. 15, 16, 17 in Student Services Handbook) • Provides a closing statement

39. Presenter Testimony • The presenter in an administrative hearing should testify for the following reasons: • The presenter must provide evidence that the perpetrator was give their due process rights. • The presenter can provide substantial evidence relative to the charge(s).

40. SUPPLEMENTARY FINDINGS Except for five charges requiring mandatory recommendations for expulsion (“the big five”), the California Education Code requires that the District must prove two things in order to expel a student: • The student committed the violation. • The school had no choice but to recommend expulsion of the student. “Supplementary findings” are evidence that supports the primary finding: that the student committed the violation and that the school had no choice except to recommend the expulsion of the student.

41. Supplementary Findings • “Supplementary findings” are evidence that supports the primary finding: that the student committed the violation. • “Supplementary findings” are required to expel a student for all charges except “the big five” charges.

42. Supplementary Findings:Requirement 1 • Other means of correction are not feasible Example: Student A makes a “hit list”, listing students and staff of the school as targets that Student A will kill. Student A has no prior referrals or suspensions. A threat assessment is done and it is determined that Student A does have the means to follow through with killing the people on the list. In order to keep the campus safe, expulsion would be the only feasible punishment.

43. Supplementary Findings:Requirement 2 • Other means of correction have failed to bring about proper conduct. Example: Student A has been recommended for expulsion. His discipline history includes 3 other suspensions for fighting and disruption, and 10 discipline referrals for various offenses.

44. Supplementary Findings:Requirement 3 • Due to the nature of the violation, the presence of the student causes a continuing danger to the physical safety of the student or others. Example: Student A attacks Student B. While talking with the principal, he says “I don’t care what you do, I’m going to get Student B when I come back.”

45. Voting Members of the Panel The panel deliberates in private with the hearing officer and then votes: • Do not expel (return to home school or transfer to another school) • Expel - Set Aside (return to home school or transfer to another school) (also known as “stipulated expulsion”) • Expel (to KCSOS community school) • Expel (one year mandatory or reduced) (do not return to the home school site after expulsion time due to victim on campus)

46. Decision to Expel • The decision by the administrative hearing panel to expel a student includes four components: • Did the school have jurisdiction? • Did the school give the perpetrator their due process rights? • Did the school provide substantial evidence relative to the charges? • Did the school provide adequate facts to support supplementary findings?

47. Potential Problems • Hearings have been lost because of: • Lack of substantial evidence to prove the charge(s). • Lack of supplementary findings. • Use of the wrong charge on the Notice of Suspension. • Witnesses did not provide substantial evidence during the hearing. • The student was denied his/her due process rights. • The investigation which produced the facts presented at the hearing violated the student’s fourth amendment rights.

48. Resources Student Services Handbook (http://www.bcsd.com/studentservices/) Board policy (http://boardpolicies.bcsd.com) Contact Steve Castro @ 631-4637 or Mike Skiba @ 631-4633