In ruling that children facing charges and the possibility of incarceration are entitled to the basic protections of due process, the Supreme Court famously wrote in In re Gault that, “[u]nder our Constitution, the condition of being a boy does not justify a kangaroo court.” About eight years later, the Supreme Court ruled in Goss v. Lopez that children have a “legitimate entitlement to a public education… protected by the Due Process Clause,” meaning that school administrators seeking to exclude a child from a public school have to provide basic due process protections. Unfortunately, the Supreme Court did not provide much detail about what specific protections children and their parents can depend upon when the state seeks to separate the child from school. Goss v. Lopez says only that a suspension for more than ten days requires notice of the charges and a right to a hearing.
In the District of Columbia prior to January of 2012, hearing officers paid by D.C. Public Schools (DCPS) traveled from school to school conducting hearings for proposed long-term exclusions of students from District of Columbia Public Schools (DCPS). Although those hearing officers were often engaging and sometimes even good in understanding the law or doing justice, just as often a student or parent faced arbitrary process and received largely unexplained and unfair results. At one hearing I attended, for example, a hearing officer ordered a child to testify as to the alleged events that formed the basis of the proposed suspension. The hearing officer seemed to be ignoring what was, in the context of that case, the child’s Fifth Amendment right against self-incrimination and ignoring, as well, the basic concept that the government has the burden of proof. That child was fortunate to have legal representatives who were able to help the hearing officer avoid violating the child’s constitutional rights. But parents and children don’t often have attorneys with them at school-exclusion hearings, leaving them vulnerable to violation of their rights.
In an agreement with the D.C. Office of Administrative Hearings (OAH) aimed at improving the quality of school discipline hearings, DCPS officials agreed that, beginning in January 2012, hearings about proposed long-term exclusions from school would be at OAH, with administrative law judges (ALJs) presiding. This change of forum has provided a significant enhancement to the process.
Nevertheless, at these OAH hearings children typically are not represented by attorneys, and – as in administrative hearings generally – the ALJs are not bound by the formal rules of evidence. As a result, the ALJs allow DCPS administrators to “make their cases” against children by providing evidence that is almost exclusively hearsay. The practice allows for multiple levels of hearsay – that is, what someone said to someone else who told the DCPS administrator who presents the “evidence” at the hearing. It’s the classic game of telephone, with the message emerging at the hearing not necessarily resembling either what the initial person reported or the truth of the matter. Students and their parents ordinarily do not have access at these hearings to question the witnesses or meaningfully challenge the evidence against them. Most parents don’t get copies of, or have access to, the records in the student’s education file until the day of the hearing, even when the parents have requested those records in advance. Parents typically don’t receive evidence from DCPS that they believe can show the child is innocent or that suspension is inappropriate, like video surveillance footage and special education records. DCPS administrators control that evidence. DCPS administrators regularly fail to provide proper timely notice to the parent about the reasons for the suspension and even the proposed length of the suspension.
Furthermore, parents often don’t get proper notice of these discipline hearings, and DCPS administrators don’t follow the schedule required by law to ensure that parents and students have a timely hearing. The process lacks these basic components of a fair hearing. So, the OAH is hopping with activity, much of which resembles a kangaroo court.
The good news is that OAH ALJs strive to apply the law and often require DCPS administrators to comply with the law. It is not unusual for an ALJ to dismiss a suspension case or for an ALJ to propose a reduction in the length of a suspension. DCPS is bound by the ALJ’s finding of facts and conclusions of law, but not by the ALJ’s recommendation on discipline. The final decision on discipline still rests with DCPS, meaning that DCPS can ignore the ALJ’s decision to reduce the length of the suspension and can impose any length of suspension allowed within that tier.
DCPS administrators have distributed and are apparently getting parents to sign a form that purports to be a “waiver-of-hearing” form. This short document includes the following explanation of the right to a hearing: “If you participate in a hearing, a judge will listen to both sides, make a decision about the facts of the misconduct, and prepare a recommendation about the discipline.” This language is deceptive: deciding “about the facts of the misconduct…” is different than deciding whether the child did or did not engage in misconduct. Further, the form informs the parent that the judge will “prepare a recommendation about the discipline.” What’s missing is an acknowledgement that DCPS has the burden of proof and that the judge could find that DCPS failed to prove that the child violated the discipline rules, failed to provide due process, or that the proposed discipline is impermissible for the alleged behavior under DCPS’s rules. The form omits the possibility that the judge will rule that DCPS cannot suspend the child or that the proposed alternative placement is inappropriate because it cannot meet the student’s educational needs. The presumption of innocence (unless proven guilty) doesn’t appear in the waiver information that parents receive. The message is that the judge’s job is limited to deciding how much suspension time to recommend.
The use of school exclusion is also discriminatory: school administrators in DC exclude children of color, children from low-income families, and children with disabilities at a far higher rate than their peers. U.S. children lost more than 18 million days of instructional time in one school year due to exclusionary school discipline practices. While we don’t know the exact numbers of lost school days in DC, we know that thousands of students are suspended each year, and that children of color, children from low-income families, and children with disabilities are excluded from DCPS and D.C. public charter schools in tremendously disproportionate numbers in comparison to non-minority and non-disabled children and children from middle- and upper-income families.
Should school administrators and parents spend their time and money paying school personnel to act as prosecutors of students and making witnesses attend school-exclusion hearings at OAH? Is that worth the time, energy, and expense? Imposing an adequate version of true due process would clog a legal and educational system that is already too busy and overwhelmed.
The obvious answer is to stop using long-term suspensions and expulsion from school as a way of addressing children’s needs. It doesn’t work, and it’s counter-productive. If you haven’t read the executive summary from “Breaking Schools Rules,” you need to read it. Here’s the link: http://knowledgecenter.csg.org/kc/system/files/Breaking_School_Rules.pdf. The District of Columbia needs to have a moratorium on suspending and expelling children. The only valid legal basis for removal from the community is if a judge in a delinquency case or in a civil commitment case rules by clear and convincing evidence that the child poses a serious danger to self or others and must be removed and placed in a secure facility. That should be an extremely rare occurrence.
 The DCPS disciplinary code is organized into five tiers. Each tier contains a list of behaviors and actions that the school can take in response to those behaviors. Tier 1 behaviors are the least serious, like arriving to class without the required materials, and Tier 5 behaviors are the most serious, like assault with a weapon.