Section 12.8. Hearings

(a) General. Education is a statutory right, and students shall be afforded due process if they are to be excluded from school. In a case involving a possible expulsion, the student is entitled to a formal hearing.

(b) Formal hearings. A formal hearing is required in all expulsion actions. This hearing may be held before the governing board or an authorized committee of the board, or a qualified hearing examiner appointed by the board. When a committee of the board or a hearing examiner conducts the hearing, a majority vote of the entire governing board is required to expel a student. The following due process requirements shall be observed with regard to the formal hearing:

(1) Notification of the charges shall be sent to the student’s parents or guardians by certified mail.

(2) At least 3 days’ notice of the time and place of the hearing shall be given. A copy of the expulsion policy, notice that legal counsel may represent the student and hearing procedures shall be included with the hearing notice. A student may request the rescheduling of the hearing when the student demonstrates good cause for an extension.

(3) The hearing shall be held in private unless the student or parent requests a public hearing.

(4) The student may be represented by counsel, at the expense of the parents or guardians, and may have a parent or guardian attend the hearing.

(5) The student has the right to be presented with the names of witnesses against the student, and copies of the statements and affidavits of those witnesses.

(6) The student has the right to request that the witnesses appear in person and answer questions or be cross-examined.

(7) The student has the right to testify and present witnesses on his own behalf.

(8) A written or audio record shall be kept of the hearing. The student is entitled, at the student’s expense, to a copy. A copy shall be provided at no cost to a student who is indigent.

(9) The proceeding shall be held within 15 school days of the notification of charges, unless mutually agreed to by both parties. A hearing may be delayed for any of the following reasons, in which case the hearing shall be held as soon as reasonably possible:

(i) Laboratory reports are needed from law enforcement agencies.

(ii) Evaluations or other court or administrative proceedings are pending due to a student invoking his rights under the Individuals With Disabilities Education Act (20 U.S.C.A. § § 1400—1482).

(iii) In cases in juvenile or criminal court involving sexual assault or serious bodily injury, delay is necessary due to the condition or best interests of the victim.

(10) Notice of a right to appeal the results of the hearing shall be provided to the student with the expulsion decision.

(c) Informal hearings. The purpose of the informal hearing is to enable the student to meet with the appropriate school official to explain the circumstances surrounding the event for which the student is being suspended or to show why the student should not be suspended.

(1) The informal hearing is held to bring forth all relevant information regarding the event for which the student may be suspended and for students, their parents or guardians and school officials to discuss ways by which future offenses might be avoided.

(2) The following due process requirements shall be observed in regard to the informal hearing:

(i) Notification of the reasons for the suspension shall be given in writing to the parents or guardians and to the student.

(ii) Sufficient notice of the time and place of the informal hearing shall be given.

(iii) A student has the right to question any witnesses present at the hearing.

(iv) A student has the right to speak and produce witnesses on his own behalf.

(v) The school entity shall offer to hold the informal hearing within the first 5 days of the suspension.

The provisions of this § 12.8 amended through February 24, 1984, effective February 18, 1984, 14 Pa.B. 657; amended December 2, 2005, effective December 3, 2005, 35 Pa.B. 6510, 6658. Immediately preceding text appears at serial pages (286657) to (286658) and (295325).

Notation

Authority

The provisions of this § 12.8 amended under section 2603-B of the Public School Code of 1949 (24 P. S. § 26-2603-B).

Notes of Decisions

Appeal

Decision of school district hearing officer to transfer student to alternative school for disruptive students following informal hearing after student was suspended was not appealable local agency adjudication. Tyson v. School District of Philadelphia, 900 A.2d 990, 992 (Pa. Cmwlth. 2006).

Since the discipline imposed was not expulsion, but rather more school, that is, 15 minutes of after-school detention for 3 days, there is no provision for appeal of that decision. Schmader v. Warren County School District, 808 A.2d 596 (Pa. Cmwlth. 2001); appeal denied 820 A.2d 163 (Pa. 2003).

A student subject to expulsion has the right to seek recourse in the appropriate court of the Commonwealth. In re Appeal of JAD, 782 A.2d 1069 (Pa. Cmwlth. 2001).

Due Process

Informal hearing process, following public school student’s disciplinary suspension, was all process that was due to student; student was not expelled from school district and bringing the full process of judicial system within public school would overburden both the public school system and the courts. Tyson v. School District of Philadelphia, 900 A.2d 990, 992 (Pa. Cmwlth. 2006).

Where the school board conducted a hearing at which the District’s witnesses testified, and the student was represented by counsel who was given full opportunity to cross-examine the District’s witnesses, that proceeding provided sufficient discovery to satisfy the requirements of § 12.8(b)(1)(i)—(ix). J.S. v. Bethlehem Area School District, 794 A.2d 936 (Pa. Cmwlth. 2002); appeal denied 818 A.2d 506 (Pa. 2003).

Identical letters sent to a student and his parents, which provided that the recommendation for expulsion was related to two incidents and specifically enumerated the facts surrounding the underlying incidents, complied with due process requirements, where the letters specifically enumerated the charges the school board was considering against the student. Hamilton v. Unionville-Chadds Ford School, 714 A.2d 1012 (Pa. 1998).

Due process requirements must be observed in school hearings. Failure to notify the student of all charges pending against such student violates due process and a new hearing must be granted. Yatron by Yatron v. Hamburg Area School District, 631 A.2d 758 (Pa. Cmwlth. 1993); appeal denied 647 A.2d 906 (Pa. 1994).

Notice

Although parents were orally notified of hearing regarding son’s suspension beyond 3 days, the additional 4 day suspension decided upon after the hearing was invalid because the school failed to give the parents written notice of the reasons for suspension, as required by subsection (c)(2)(i). Mifflin County School District v. Stewart, 503 A.2d 1012 (Pa. Cmwlth. 1986).

When the parent of a student received notice of a disciplinary hearing approximately 24 hours before the hearing was scheduled to commence, such notice was inadequate. Minnicks v. McKeesport Area School District, 74 Pa. D. & C.2d 744 (1975).

Procedural Violations

Where defendant school district summarily suspended plaintiffs for a period in excess of 3 days and failed to follow notice and hearing procedures, those portions of the suspension served before proper notice and hearing were expunged from plaintiffs’ records. Mullane v. Wyalusing Area School District, 30 D. & C.4th 179 (1997).

Cross References

This section cited in 22 Pa. Code § 12.6 (relating to exclusions from school); and 22 Pa. Code § 12.7 (relating to exclusion from classes—in-school suspension).