Administrative Hearings:
Preparation and Presentation
Steve Castro, Supervisor
Mike Skiba, Supervisor
Student Services Department
Bakersfield City School District
November, 2011
Presentation Goals
Participants will learn about:
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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
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:
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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.
Emergency Situation
An information conference preceding a suspension may only be omitted if
the principal or designee determines that an “emergency situation” exists.
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"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.
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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.
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:
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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.
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The student shall be provided with a Free Appropriate Public Education during suspension.
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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
Suspension Due Process (continued)
Students on a 504 Accommodation Plan
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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”
Notifying Student Services
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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 # 6339736 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).
Section 504 Issues
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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.
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.
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).
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]):
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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.
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.
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Possession of any knife as defined in Education Code Section 48915 (g),
explosive, or other dangerous object of no reasonable use to the student.
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Unlawful possession of any controlled substance.
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Robbery or extortion.
◊ Assault or battery upon any school employee
◊ No possibility of waiver, hearing only.
Waiver of Administrative Hearing
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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.
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A parent or legal guardian may waive their right to an administrative
hearing only after receiving all applicable due process rights.
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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.
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.
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.
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.
OPENING AND CLOSING
STATEMENTS
Opening and closing statements are not
evidence.
 The decision of whether to expel cannot
be made on this information.
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Record Access
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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.
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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!
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Providing the name, address or telephone number of the witness(es) is
unauthorized record access (Education Code Section 49076).
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.
Establishing Evidence
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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.)
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.
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.
HEARSAY EVIDENCE
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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.
EXAMPLES OF HEARSAY
EVIDENCE
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The vice-principal was told by two students
that Student X attacked Student Y.
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The campus supervisor testifies in a hearing
that Student X told him/her that he saw
another student smoking marijuana.
Identification of Witnesses
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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.).
Use of Witnesses
Direct witness testimony in the administrative hearing
regarding the event or actions that led to a
recommendation for expulsion is necessary.
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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.
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Special rules apply to witnesses testifying in a hearing
involving sexual assault and/or sexual battery charges
(Education Code Section 48918 [h]).
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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.
Use of Witnesses
E.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?”
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 substantial evidence.
 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).
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Witness Testimony
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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.)
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Have the witness(s) testify as to the events of the incident.
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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.
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Avoid asking leading questions of the witness(es).
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Avoid asking questions of the witness that require information
that the witness would have no knowledge of.
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.
Leading Questions
Example 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?”
Leading Questions
Example 2
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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?”
Tips for Testifying in an
Administrative Hearing
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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.
Tips for Testifying in an
Administrative Hearing (cont.)
During direct and cross-examination:
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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.
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.
Sworn Declarations Continued
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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.
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
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The hearing officer will control the hearing and all issues or
problems that occur in the hearing.
Participating in the Administrative
Hearing
The school representative:
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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
Presenter Testimony
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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).
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.
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.
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Supplementary Findings:
Requirement 1
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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.
Supplementary Findings:
Requirement 2
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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.
Supplementary Findings:
Requirement 3
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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.”
Voting Members of the Panel
The panel deliberates in private with the hearing
officer and then votes:
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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”)
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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)
Decision to Expel
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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?
Potential Problems
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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.
Resources
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Student Services Handbook
(http://www.bcsd.com/studentservices/)
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Board policy (http://boardpolicies.bcsd.com)
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Contact Steve Castro @ 631-4637
or Mike Skiba @ 631-4633