It has been a quiet summer for the most part, but a parent of one of the students in my school just won’t let something go. Late last spring, another student accused her son of threatening violence. As the building principal, I carefully interviewed both students, and the student alleging the threat was credible. By contrast, the student accused of threatening was singularly unpersuasive, purportedly unable to remember much at all about the interaction, one way or the other.

I take my job seriously, and I have no doubt that the one student was a victim of the other’s threatening behavior. Consequently, I gave the perpetrator one more chance to come clean (he didn’t), and then I suspended him for the six days left in the school year.

Since I took that action, I have not heard the end of it. The student’s mother has been unrelenting in her protests that her son is innocent of all wrongdoing and that his suspension must be rescinded and all related records must be expunged. She keeps claiming that the evidence against her son is hearsay, which, citing numerous television shows, she claims is “inadmissible.” When I told her that my decision would stand, she appealed to the superintendent, who shut her down. Now she is threatening to sue me and the district for this “miscarriage of justice.”

Did I rely on “hearsay,” and, if so, did I mess up?

Signed,
I Am Listening

Hearsay is the legal term for a statement of another offered in a proceeding for the truth of the matter asserted. In formal judicial or administrative proceedings, hearsay statements are disfavored because the party against whom the hearsay evidence is offered cannot challenge the truth or accuracy of the hearsay statement by questioning (cross-examining) the person who made the statement.

Were the question of hearsay to come up in more formal expulsion proceedings, this would be a close question, and sometimes it is necessary to bring the other student to the expulsion hearing to testify as a matter of due process. Traditionally, the courts have considered reliance on hearsay to expel a student to be a violation of due process. DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972). More recently, however, the courts have been more tolerant in permitting hearsay evidence, even in expulsion hearings. E.K. v. Stamford Board of Education, 557 F.Supp.2d 272 (D. Conn. 2008).

As quoted in the E.K. v. Stamford Board of Education case, in Mathews v. Eldridge, 424 U.S. 319 (1976), the United States Supreme Court ruled that the amount of process due depends in a given situation should be determined through a balancing test:

Mathews requires consideration of: (1) the private interest that will be affected; (2) the risk of erroneous deprivation through the procedures and the probable value of additional or alternative safeguards; and (3) the government’s interest, including the function involved and the administrative burdens of the additional safeguards.

In E.K. v. Stamford Board of Education, the court balanced those interests and allowed the hearsay testimony, explaining as follows:

Further, as recognized in precedent, the school has a strong interest in protecting students who cooperate with investigations into misconduct. “Those students may be understandably reluctant to come forward with information if they are faced with the prospect of formal cross-examination by the offending student or his attorney….” [Citations omitted].

In expulsion cases, therefore, school officials must consider the rights of the accused carefully and balance the interests accordingly. Reliance on hearsay should be the exception, not the rule.

In cases of suspension, by contrast, the balance is very different. In Goss v. Lopez, 419 U.S. 565 (1975), the seminal case on student due process rights, the United States Supreme Court drew a sharp distinction between exclusion from school for up to ten days (defined in Connecticut as “suspension”) and exclusion for more than ten days (defined in Connecticut as “expulsion”):

We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.

On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.

In accordance with Goss, the process that is due before a student may be suspended is simply “effective notice and informal hearing permitting the student to give his version of the events.” The student facing suspension does not have the right to confront his accuser or to object to reliance on the statements of other students. The objections of the student’s mother to your relying on the word of the other student, therefore, are without merit.

This situation raises a couple other issues. First, we note that the Connecticut law on suspension favors in-school suspension over out-of-school suspension, providing for students in grades 3 through 12 that “all suspensions . . . shall be in-school suspensions” except when:

(A) the administration determines that the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil shall be excluded from school during the period of suspension, or (B) the administration determines that an out-of-school suspension is appropriate for such pupil based on evidence of (i) previous disciplinary problems that have led to suspensions or expulsion of such pupil, and (ii) efforts by the administration to address such disciplinary problems through means other than out-of-school suspension or expulsion, including positive behavioral support strategies . . . .

Was the suspension you imposed an in-school suspension, or did you conclude that the student who threatened the other continued to be a danger or disruption in the school setting?

Second, Legal Mailbag also notes that you were correct in not extending the suspension to the coming school year. The very definition of “suspension” under Connecticut law provides:

(d) “Suspension” means an exclusion from school privileges or from transportation services only for no more than ten consecutive school days, provided such exclusion shall not extend beyond the end of the school year in which such suspension was imposed. (Emphasis added).

Legal Mailbag sympathizes with you on being the object of continued parent criticism. However, as described above, your actions were wholly consistent with the student’s constitutional and statutory rights.