The Code of Ethics for School Board Members tells us that the role of boards is not to administer the schools but to see they are well run. In this regard, board action is normally confined to policymaking, planning and appraisal. There are occasions, however, when boards find themselves directly involved in administrative issues involving the schools. Typically, this happens when a student or staff member is afforded a hearing before the board. Some hearings are more formal and involve greater procedural safeguards, while others must simply comply with the fundamental due process concepts of notice and an opportunity to be heard. Below is an overview of the most common types of hearings.

Student Discipline Hearings Because they involve the fundamental right of students to attend school, student discipline hearings are among the most formal with the greatest procedural safeguards. Any time a student faces a long-term suspension, meaning a suspension from school for more than ten consecutive school days, he or she is entitled to a formal hearing, to be held no later than 30 days after the student is suspended.

Prior to the hearing, the student’s parents or guardians are provided by the administration with a formal written notice including the specific charges, the facts on which the charges are based, a list of witnesses, copies of any witness statements or affidavits, and information regarding their right to counsel.

The hearing may be conducted before the full board, or it may be referred to a committee of the board, a school administrator or an impartial hearing officer. However, if the hearing is not held before the full board, then the board must be provided with either a transcript or a detailed report of what transpired at the hearing. Ultimately, it is the full board which must make the decision.

The hearing is not subject to the Open Public Meetings Act and must be conducted in private. At the hearing, the student and his or her parents/guardians must be provided the opportunity to confront and cross-examine witnesses and to present their own defense, either through testimony or written affidavits.

In determining what is appropriate for the student, the board must consider factors such as the student’s academic, health and behavioral records; the results of relevant testing or evaluations of the student; a behavioral assessment including, but not limited to, a referral to the child study team, as appropriate; the recommendation of the chief school administrator, principal or other relevant school or community resource; parental input; or consultation with the intervention and referral services team.

The actual hearing should be conducted somewhat formally. The district should go first, presenting witnesses in support of the charges. This would include the introduction of relevant exhibits and documents such as photos, videos and reports. An appropriate administrator should testify regarding the results of any testing and assessments as well as the student’s academic, attendance and discipline records. The superintendent or other designated administrator should then provide the recommendation of the administration.

The parents/guardians have the right to cross-examine the district’s witnesses. They also have the right to present their own witnesses, introduce their own evidence and make their own arguments. Unlike a criminal trial, the board’s standard of review is not beyond a reasonable doubt. Rather, the board’s decision should be based simply on the preponderance of the evidence. It is up to the board to assess the evidence.

Preponderance means the greater weight of the evidence. Lawyers frequently use the example of the scales of justice, if the evidence tilts the scales even a little then the preponderance standard has been satisfied.

Within five school days following the hearing, the parents must be provided with a written decision including, at a minimum, the charges considered, a summary of the evidence from both sides, the factual findings and determination on each charge, the educational services to be provided, the terms and conditions of any suspension, and the family’s right to appeal to the New Jersey Commissioner of Education. If the student is found not to have committed the offense, he or she must be immediately returned to the general education program. The discipline of special education students is beyond the scope of this article.

HIB Hearings The law provides very detailed procedures and timelines for the investigation of harassment, intimidation and bullying (HIB) complaints. Once the investigation is completed, the results are given to the superintendent who must report to the board of education no later than the next board meeting following completion of the investigation. Within five days after the results of the investigation are reported to the board, the parents must be provided with information about the investigation, including the nature of the investigation, whether HIB was found, and whether discipline or other services were provided. The parents may request a confidential hearing before the board of education within 60 calendar days after receiving the results of the investigation. The board hearing must be held within 10 business days of the request. Once a hearing is requested, a recent court decision requires that prior to the hearing the parents are to be supplied with the full record regarding the matter, including any investigation reports.

Unlike student discipline hearings, HIB hearings are relatively informal and have fewer procedural requirements. At the hearing, the board can hear from the school anti-bullying specialist about the incident, any recommendations for discipline and services, and any programs instituted to reduce such incidents. The board may also choose to hear from anyone it determines could help it make its decision. There is no requirement that the board call witnesses to testify and no right to cross- examination. The parents must be given an opportunity to be heard regarding the complaint. Typically, parents or their representatives are allotted time to state their case and to present testimony or exhibits. The fact that HIB hearings do not call for the same due process requirements as student discipline hearings was recently affirmed in an administrative law judge opinion. At the time this article went to press, the education commissioner had not yet issued a final decision in that matter.

In reviewing an HIB appeal, the board should consider whether the board HIB policies and procedures were followed, and whether the evidence supports the finding of the administration, taking into consideration the definition of HIB. The board must then issue a written decision to affirm, reject or modify the prior decision. The decision of the board will generally not be disturbed unless it is found to be arbitrary, capricious or unreasonable.

Donaldson Hearings Donaldson hearings are not really hearings at all. When an employee is non-renewed, they have the right to request a written statement of reasons for the non-renewal. They can then request an informal appearance before the board of education. It is this informal appearance that has come to be known as a Donaldson “hearing,” after the name of an old court case.

The most important thing to understand about Donaldson hearings is that by law they are not adversarial proceedings. The purpose of the informal appearance is to permit the staff member to attempt to convince the members of the board to offer him or her re-employment despite the recommendation of the superintendent.

Once the employee requests a hearing, he or she must be provided with adequate written notice of the date, time and place where the hearing will be held. At the hearing, the employee may be represented by counsel or an individual of his or her choosing. The informal appearance is conducted in closed session unless the employee requests that it be held in public.

Generally, the district does not present any evidence at a Donaldson hearing. The employee is allotted time to try to convince the board that the decision not to offer re-employment was incorrect. The employee may present witnesses on his or her behalf, but they do not have to give their testimony under oath. The board is not permitted to cross-examine the employee’s witnesses. If the hearing is held in closed session, witnesses shall be called into the meeting to address the board one at a time and excused from the meeting after making their statements. The procedure is not intended to place into question the credibility of the witnesses, but to avoid confrontation and insure an orderly proceeding.

Once the informal appearance is over, the board is not required to take formal action. In other words, the board does not have to vote after the hearing. If the board doesn’t vote, and the superintendent had made a recommendation not to renew, the superintendent’s recommendation will stand. Similarly, if the board does not vote and the employee was not renewed because of the board’s failure to approve renewal despite the superintendent’s recommendation to renew, the decision not to renew will stand.

However, after the Donaldson hearing, the board can override the superintendent’s recommendation not to renew, or its own previous refusal to approve renewal, and can vote to offer the employee a contract. The motion to offer a new contract must pass by a recorded roll call majority vote of the full membership of the board. If the motion does not pass, the determination not to renew stands, and the employee is deemed non-renewed.
Within three days following the informal appearance, the board must inform the staff member in writing of its final determination. This notice can be delegated to the superintendent or board secretary.

Student Residency Hearings The law contains detailed procedures for enrolling and determining the eligibility of students to attend school based on residency in a district. Once a student is enrolled and attending school in the district, he or she may not be removed except by formal action of the board of education and then only after the family is provided an opportunity for a hearing.

Prior to the hearing, the superintendent must send a written preliminary notice of ineligibility that is consistent with a commissioner-provided form. It must include a clear description of the specific basis on which the determination of ineligibility was made so that the applicant can understand the decision and decide whether to appeal, as well as other information required in the formal notice.

At the board hearing, the student’s parent, guardian or caregiver will be given the opportunity to prove that the student is either domiciled in the district, meets the requirements of an affidavit student, or has some other legal entitlement to attend the school. Applicants may bring to the hearing any documents to support their claim and any witnesses who can testify about their residency or about the student’s family or economic hardship.

The hearing may be conducted before a committee of the board rather than the full board, in which case the committee must make a recommendation to the full board. However, no student may be removed from a district without a vote of the full board at a public meeting.
If the board finds that the student is not domiciled in the district, is not a valid affidavit pupil, and is not otherwise legally entitled to a free public education in the district, it can seek to remove the student. If the board makes such a determination, the district must immediately provide written notice and include specific information on how to file an appeal with the commissioner of education. The district must wait 21 days from the board’s decision before removing the child from school to allow time for an appeal. It must also include in the notice a clear statement of the student’s right to continue to attend school while an appeal to the commissioner is pending.

While this article summarizes various hearings, for specific guidance and advice, a board should consult with its attorney. In addition, as a general rule, the board attorney should be present at any hearing at which the other side will be represented by counsel.

John E. Croot Jr., Esq., is an attorney with Adams Gutierrez & Lattiboudere, LLC.

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