If a school considers suspending or expelling a student beyond 10 days, then “due process rights,” or legal procedures and safeguards are triggered. In the school disciplinary setting, these rights are protected in a disciplinary hearing, also referred to as a “tribunal.” By Georgia law, schools must notify parents and students either by mail or in person to schedule the hearing.
Notification is in the form of a letter that clearly lays out the offense the school is alleging the child committed. The school will also provide their recommendation for a punishment, or a “disciplinary action.” By law, the school cannot suspend a child for more than 10 days without a hearing so the process moves very quickly. Often, parents will receive a letter and only have a few business days to prepare and consider retaining a lawyer.
In addition to providing notice, the school will typically ask parents and students to attend an informal meeting. When this cannot be arranged, a phone call may be scheduled. The purpose of this discussion is for the school to discuss their intentions in requesting a hearing, their recommendation for punishment and the option of a waiver.
Since the process moves quickly and a parent may not have had the opportunity to retain an attorney, the notion of signing a waiver may seem daunting and unfamiliar. Here are several common questions from parents, along with my answers below.
Q: What exactly is a “waiver”?
A: A waiver is a form prepared by the school that lays out the student’s infraction, explains that the student has a right to a hearing and explains that the student is giving up, or waiving the hearing. It then describes the discipline that the school intends to implement and the student and parents then sign the document as their intention to give up the hearing, and accept the discipline as described. The form is typically 1-2 pages in length.
Q: What rights am I waiving?
A: The right to the disciplinary hearing and all the rights associated with the hearing: the right to attend the hearing, present evidence, subpoena witnesses, cross examine witnesses and be represented by an attorney at the hearing. Additionally, the rights to appeal the discipline are also waived, as waivers are considered final.
Q: Do I have any say in this process?
A: Yes, although due to the time line, things do move fast. Typically, schools will present the wavier very early in the process, often before the parents have had time to talk to their child, ask questions or review any reports from the school resource officer. Rarely is there time to fully digest the situation and the future impact of the infraction and discipline recommended. The parents can certainly attempt to talk and negotiate with the school early on, but often they are feeling pressure from the school and not always provided the time or opportunity to do this.
Q: Can an attorney be involved in this process?
A: Yes, once a family retains an attorney, the attorney will handle all communication and be the point of contact with the school. The attorney will work to gather all of the needed information including evidence as well as the school’s recommendation for discipline. The attorney will then be able to best advise the family on the consequences of signing a waiver, engage in negotiation and provide mitigation information on behalf of the student. The attorney will simultaneously be preparing for the hearing so that the family has several options for the resolving the matter.
Q: What are the benefits of waiving the hearing?
A: One benefit of waiving the hearing is avoiding the stress of the actual hearing. While the process is designed to allow the student an opportunity to be heard, it can often seem adversarial and negatively impact a student. This is not always the case, however, and in some situations having the hearing provides closure and allows the student to move forward in a positive way. Much of this has to do with the unique situation of the student. In addition, sometimes the school is willing to negotiate and change their initial recommendation in favor of a lesser disciplinary action if the student waives the hearing.
Q: What are negative consequences?
A: You lose any future rights to appeal the school’s decision once the waiver is signed unlike if a hearing is held. If a disciplinary hearing occurs and you do not agree with the outcome, then you can appeal the decision. In addition, while the student is not required to make any statements at a disciplinary hearing, often if it is beneficial to the student to give an explanation. If a juvenile court case is pending, these statements could be used in their investigation or as evidence.
In sum, the school disciplinary process moves fast in order to comply with the law and a lot is at stake regarding the student’s educational future. Parents should be aware of the gravity of the situation and thoroughly weigh all options. At Boortz Law, we are happy to discuss your disciplinary situation and help you navigate each step of the process.
Kathryn Boortz has a passion for working with youth and their families. She is the founder of Boortz Law, a law firm that focuses on juvenile defense.