If your child is charged with possession of drugs on school premises or at a school sponsored event, preparation for the events that will follow is essential in protecting your child’s education. State law specifically provides that a student may be expelled from school if he is found in possession of drugs on school premises or at a school sponsored event.[1] Though the principal has discretion in deciding whether or not to expel a student, this law can be rigid in its application by some school districts. However, you can increase your child’s chance of being allowed back in school if you have legal representation and assistance in navigating the discipline process.
You should consult with an attorney as soon as you become aware that your child has been suspended. Generally, the school administration will have already spoken with the child, who may have admitted possession (especially if the drugs were found on his person). Regardless of whether or not your child has admitted anything, it is important to be prepared prior to speaking with anyone at the school and prior to any hearing on the matter. If there is no dispute that your child was in possession of drugs, cooperation with the school administration is essential in helping to diffuse the situation and hopefully allow your child to continue in school. Though the principal may expel a student who has been found in possession of drugs, the principal has the discretion to suspend, rather than expel, the student.
Upon suspension, or shortly thereafter, the student must be notified of the charges, must be provided with an explanation of the evidence against him and must be provided with an opportunity to present his side of the story. There are greater due process protections in the event an expulsion hearing is scheduled. Prior to the expulsion of a student, the school must notify the student of the charges in writing. This letter should also notify you of the student’s right to a hearing at the school. The student has the right to an attorney at the hearing, must be given adequate time to prepare for the hearing, must be given access to the evidence the school plans to use at the hearing and has a right to have witnesses at the hearing.
If the school administration has made clear to you their plans to move forward with an expulsion hearing, one option is to withdraw your child from school prior to the expulsion hearing. Some parents choose this option because, once a student is expelled from school, no other public school in Massachusetts has to enroll the student. Unfortunately, this leaves many expelled students with no options other than to obtain a GED or try to obtain admission to a private school. The cost of most private schools often makes this option prohibitive for many parents. Additionally, if your child is a senior in high school, the prospect of being accepted by any school so late in the child’s educational career dwindles. However, withdrawing your child from school can certainly have consequences. Most importantly, your child will have to explain her reasons for withdrawal to other schools. Moreover, you are gambling that the principal will expel, rather than suspend, the child after the hearing.
In some circumstances, an attorney acting on behalf of the child is able negotiate an agreement for the student’s re-entry into school prior to an expulsion hearing. Such an agreement generally includes prohibitions and consequences for the student and should be carefully reviewed prior to signing.
The expulsion hearing is led by the principal and is the only opportunity the student has to present his version of events. To the extent there are any disputed facts, it is very important to gather any witnesses to attend the hearing. For instance, if the drugs were found in the student’s locker, backpack or car and the student disputes ownership of the drugs or even knowledge that the drugs were there, it will be important to locate any witnesses who will be able to corroborate his story. These witnesses are usually other students, who may or may not be willing to involve themselves in the matter.
Whether or not facts are in dispute, it is important for your son or daughter to find character witnesses willing to testify at the hearing, or even just to write a letter. You and your child should look to her employers, priests, pastors, rabbis, parents of your child’s friends, or other adult members of the community who know your child well enough to be able to speak or write positively about her.
At the hearing, the following people will generally testify: your child, the school teacher or administrator who found the drugs or took part in the investigation, and any other witness who has knowledge of the facts. It is important for your child to be well prepared for his testimony. As potential criminal issues can arise from your child’s admission to certain facts, you should consult with an attorney prior to your child giving testimony. The school’s witnesses can be cross examined and you can present other fact or character witnesses or any letters or affidavits in support of your child. The hearing is generally recorded by an audio recording device.
If the principal finds that your child violated the handbook and/or state law by possessing, using or distributing drugs on school grounds or at a school sponsored event, he or she has the right to expel your child. If your child is expelled, you have the right to appeal the principal’s decision to the superintendent. The superintendent must hold an appeal hearing at which additional facts or legal arguments can be presented. The superintendent can either uphold or overturn the principal’s decision. If the expulsion decision is upheld, the recourse is to appeal to state court.
It is important to recognize that the school has a great amount of discretion in deciding your child’s future if your child has violated the school’s code of conduct or state law regarding possession or use of drugs. Being well versed in the issues and well prepared for the hearing and any negotiations can be crucial to saving your child’s education.
[1] Though the provision of state law, M.G.L., ch. 71, §37H, also pertains to possession of weapons and assault of school staff, this article will focus on drug related misconduct at school.