Navigating the High School Expulsion Process

If your child’s school has indicated it intends to expel him or her, there is a lot that must be done — and quickly — to intervene and try to produce a different result. A school district must hold a hearing to determine if expulsion is the appropriate remedy for the conduct at issue. This hearing is extremely important and one of the main due process rights to which your child is entitled during the expulsion process. Done right, this hearing has the potential to change the disciplinary outcome. Hiring a legal advocate well-versed in school discipline law will help ensure that you maximize the benefit of all due process rights to which your child is entitled in an effort to keep him or her in school.

As a preliminary matter, students under the age of six cannot be expelled from school under the Colorado School Code. If an out-of-school suspension is assigned to a student in second grade or younger, the length of the suspension is limited to a maximum of three days unless the executive officer of the enrolling entity determines that a longer period is needed for safety reasons or to pursue expulsion.

C.R.S. 22-33-106 provides that the following may be grounds for suspension or expulsion of a child from a public school:

(a) Continued willful disobedience or open and persistent defiance of proper authority;

(b) Willful destruction or defacing of school property;

(c) Behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel…;

(c.5) Declaration as a habitually disruptive student;

(d) Committing one of the following offenses on school grounds, in a school vehicle, or at a school activity or sanctioned event:

(I) Possession of a dangerous weapon without the authorization of the school or the school district;

(II) The use, possession, or sale of a drug or controlled substance as defined in section 18-18-102(5), C.R.S.; or

(III) The commission of an act that, if committed by an adult, would be robbery pursuant to part 3 of article 4 of title 18, C.R.S., or assault pursuant to part 2 of article 3 of title 18, C.R.S., other than the commission of an act that would be third degree assault under section 18-3-204, C.R.S., if committed by an adult.

(e) Repeated interference with a school’s ability to provide educational opportunities to other students;

(f) Carrying, using, actively displaying, or threatening with the use of a firearm facsimile that could reasonably be mistaken for an actual firearm in a school building or in or on school property.

(g) Pursuant to section 22-12-105(3), making a false accusation of criminal activity against an employee of an educational entity to law enforcement authorities or school district officials or personnel.

Prior to suspending or expelling any student, a school district should consider the following factors: (i) the age of the student; (ii) the student’s disciplinary history; (iii) whether the student has a disability; (iv) the seriousness of the student’s violation; (v) whether the student’s conduct threatened the safety of any other students or school staff; and (vi) whether a lesser disciplinary intervention could properly address the student’s violation. C.R.S. 22-33-106(1.2)(a-f).

In Nichols v. Destefano, the Colorado Court of Appeals held that where expulsion is permissible (not mandatory), evidence of the student’s character and other school behavior is relevant to determine whether expulsion was warranted. 70 P.3d 505, 508 (Colo. App. 2002). This means that an effective presentation concerning your child’s character outside the scope of the disciplinary infraction can be persuasive and must be considered during the hearing process.

If a student is referred for expulsion, the student has the right to a hearing and may present evidence on their behalf. The school district’s board of education can delegate authority to an executive officer or designee to preside over the hearing. If a designee presides over the hearing, the designee must forward findings of fact and recommendations to the executive officer at the close of the hearing. Then, the executive officer must issue a written opinion within five days after the hearing.

Students can appeal an expulsion decision of an executive officer to the board of education. An appeal will include review of the facts presented and determined at the hearing, arguments regarding the decision, and requests for clarification from the board of education.  Students are also entitled to judicial review of an expulsion decision from a board of education. If a student or parent seeks judicial review, they must notify the board of education in writing within five days after receiving official notification of the board’s action. Upon notice, the board must issue a statement of the reasons for the board’s action. Within ten days of the board’s response, the student or parent can file a petition requesting that the board’s order be set aside. After a petition is filed, the court must notify the board, set the matter for hearing, and review the hearing decision. A district court will have authority to review the actions of a board of education for an abuse of discretion.

Navigating any school discipline process can be tricky, and the stakes are never higher than when your child faces an expulsion. Led by partner Lindsay Brown, the school discipline team at Meilstrup & Brown is experienced and well-equipped to lead you through this difficult and important process. Reach out today for a free case consultation. Lindsay@meilstrupbrown.com