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Tuolumne COE |  AR  5144.3  Students

Student Expulsion Appeals   

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Conduct Of The Hearing

The Hearing Officer, Board Chairman, or other Board Designee shall conduct the hearing in order to ensure that due process is afforded to all of the parties. Such designee shall be responsible for the determination of what evidence will be admitted and considered by the board, the reasonable time period for argument, the appropriateness of subpoena requests (issuance when there is good cause shown), ruling on objections and the general tenor of the hearing in terms of appropriateness of the parties' behavior. The designee shall have the authority to exclude parties who cause disruption to the proceedings. Additionally, the designee shall have the authority to hold a party in contempt under the following circumstances:

Contempt

The Tuolumne County Board of Education may sanction persons present at the hearing for the following conduct:

1. Disobedience of or resistance to a lawful order.

2. Refusal to take the oath or affirmation as a witness or thereafter refusal to be examined.

3. Obstruction or interruption of the due course of the proceeding during a hearing or near the place of the hearing by any of the following:

a. Disorderly, contemptuous or insolent behavior toward the presiding officer while conducting the proceeding.

b. Breach of the peace, boisterous conduct or violent disturbance.

c. Other unlawful interference with the process or proceedings of the agency.

4. Violation of the prohibition of ex parte communications under Article 7 (commencing with Education Code 11430.10)

5. Failure or refusal, without substantial justification, to comply with a deposition order, discovery request, subpoena or other order of the presiding officer, or moving, without substantial justification, to compel discovery.

Order to Show Cause Procedure

The County Board president, acting Board president or hearing officer may certify the facts that justify the contempt sanction against a person to the superior court in Tuolumne County. The court shall thereupon issue an order directing the person found in contempt by the Board to appear before the court at a specified time and place, and then and there to show cause why the person should not be punished for contempt.

Record of Hearing

The hearing before the Board shall be recorded by tape recorder or court reporter. Parties and witnesses shall be made aware of this before the hearing has commenced. In the event either party requests a transcript of the hearing, such party shall bear the cost of preparing such transcript.

Abandonment of Appeal

An appeal will be deemed abandoned and the appeal dismissed if either:

1. The appellant (pupil, parent, or guardian) fails to provide the transcript referred to in section 3 above; or

2. The appellant (pupil, parent, or guardian) fails to appear at the time set for the hearing.

Procedure for Hearing De Novo

In the event the Board grants a hearing de novo, the following procedure shall apply:

1. The pupil and the pupil's parent or guardian shall be entitled to a hearing to determine whether the pupil should be expelled. An expulsion hearing shall be held within twenty school days of the decision of the Board to grant a hearing, unless the pupil or the pupil's parent or guardian requests in writing that the hearing be postponed (when this deadline is impracticable, an extension of up to five school days is permitted for good cause.) Such request for postponement shall be made at least five days prior to the date of the hearing.

2. Written notice of the hearing shall be forwarded to the pupil or the pupil's parent or guardian at least ten days prior to the date of the hearing. Such notice shall include: The date and place of the hearing, a statement of the specific facts and charges upon which the proposed expulsion is based, a copy of all the rules of the district which pertain to discipline adopted pursuant to Education Code Section 35291, and the

opportunity of the pupil or the pupil's parent or guardian to: Appear in person or to employ and be represented by counsel, inspect and obtain copies of all documents to be used at the hearing, confront and question all witnesses who testify at the hearing, question all other evidence presented, and present oral and documentary evidence on the pupil's behalf, including witnesses.

3. Prior to the commencement of the hearing, the County Board may issue subpoenas at the request of either the Superintendent of Schools or the Superintendent's designee or the pupil, for the personal appearance of percipient witnesses at the hearing. After the hearing has commenced, the Board designee or hearing officer may issue subpoenas at the request of either the County Superintendent of Schools or the Superintendent's designee or the pupil.

All subpoenas shall be issued in accordance with Education Codes 1985, 1985.1 and 1985.2 of the Code of Civil Procedure.

4. The County Board shall conduct a hearing to consider the expulsion of a pupil in a session closed to the public unless the pupil or the pupil's parent or guardian request in writing at least five days prior to the date of the hearing that the hearing be a public meeting. If such request is made of the County Board, the meeting shall be public.

5. A record of the hearing shall be made. Such record may be maintained by any means, including electronic recording, so long as a reasonably accurate written transcription of the proceedings can be made.

6. Technical rules of evidence shall not apply to such hearing, but evidence may be admitted and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. A decision of the County Board to expel must be based upon substantial evidence relevant to the charge. Except as provided in #10-f., no evidence to expel shall be based solely upon hearsay evidence.

7. At the hearing, the representative of the district shall communicate to the County Board the facts upon which the charges are made. If the incident was observed by persons, these persons should be called into the hearing to tell what they saw, heard, smelled, tasted, or otherwise observed. Sworn declarations of witnesses may be presented if it is determined that the disclosure of the identity of a witness and the testimony of the witness at the hearing would subject the witness to an unreasonable risk of harm. Relevant writings shall be presented to the County Board. Every fact upon which the charges against the students are based should be presented at the hearing. Board members and other persons hearing the matter may only consider facts presented to them at the time of the hearing. The district and the pupil may stipulate to what the facts are, or what some of the facts are.

8. Witnesses shall be sworn and testify under oath. The president of the County Board or presiding officer will swear the witnesses. The form of oath should be as follows:

"Do you solemnly swear (or affirm, as the case may be), that the evidence you shall give in this matter pending before the County Board of Education shall be the truth, the whole truth, and nothing but the truth."

9. The County Board may exclude from any such public or private meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the above County Board.

10. The student or the student's parent or guardian shall have the opportunity to:

a. Appear in person or to employ and be represented by counsel.

b. Inspect and obtain copies of all documents to be used at the hearing.

c. Confront and question all witnesses who testify at the hearing.

d. Request that the board issue subpoenas.

e. Question all other evidence presented.

f. Present oral and documentary evidence on the student's behalf, including witnesses.

g. Examine the writings presented at the hearing.

h. Ask witnesses relevant questions about the incident upon which the charges are based.

i. Bring in witnesses (including the student) and present documents to show the pupil's version of what occurred.

11. The following special rules will apply to a hearing de novo when the student is charged with sexual assault or sexual battery:

a. A complaining witness shall be given five calendar days notice prior to be called to testify.

b. The complaining witness shall be entitled to have up to two adult support persons present during his/her testimony. The support person may be a parent, guardian, legal counselor other adult.

c. The support person(s) shall be admonished that the hearing is confidential, and the support person(s) may be removed from the hearing if they cause disruption to the proceedings.

d. If one or both of the support persons is also a witness the provisions of Section 868.5 of the Penal Code shall be followed for the hearing.

e. The complaining witness's prior sexual conduct shall be presumed to be inadmissible unless the hearing officer determines that extraordinary circumstances exist which require such testimony. Before that determination, the witness shall be given notice and an opportunity to object to the admission of that evidence. The witness may be represented in this regard by a parent, guardian, legal counselor other support person. Under no circumstance will opinion testimony regarding the reputation of the witness for sexual behavior be considered.

f. If the student being expelled requests a hearing open to the public, the complaining witness has the right to have his/her testimony given in closed session if:

(1) Testifying in public would subject the complaining witness to serious psychological harm, and

(2) There are no alternative procedures to prevent the threatened harm. Examples of alternative procedures include a videotaped deposition and examination in another place and communicated to the hearing room by means of closed circuit television.

g. The County Board shall provide a non-threatening environment for the hearing.

h. At least 10 days prior to the hearing, the complaining witness shall be provided with written notice of his/her rights including:

(1) Receiving at least five days notice of the witness's scheduled testimony.

(2) Having up to two adult support persons present in the hearing when the witness testifies at the hearing.

(3) Having the hearing closed to the public during complainant's testimony.

(4) Having the hearing postponed for one day to accommodate the witness's physical, mental or emotional needs.

12. If the pupil, parent, guardian, or attorney fails to object at the hearing that these rules are not being properly followed, or that any other law or requirement of due process is not being followed, these objections shall be deemed waived.

13. Whether a pupil expulsion hearing is conducted in closed or public session, the County Board may deliberate in closed session. As a general rule, the Board's attorney will not be part of the closed session deliberation. Final action to expel shall be taken by the Board at a public meeting. The Board shall make specific findings and reach a decision. Written notice of any decision to expel shall be sent to the pupil or parent or .guardian.

14. The County Board shall act by majority vote of all the members present.

15. The decision of the County Board shall be final and binding upon the pupil and upon the governing board of the school district. The pupil and the school district governing board shall be notified of the final order of the county board, in writing, either by personal service or by certified mail. The order shall become final when rendered.

Regulation TUOLUMNE COUNTY SUPERINTENDENT OF SCHOOLS

approved: January 28, 2008 Sonora, California