Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
It was a long school year, and I breathe a sigh of relief that the summer break is here. However, the challenges continue. Two days before the school year ended, a ninth-grade boy came to me and tearfully claimed that a tenth-grade boy had forced him to “loan” him ten dollars “or else.” As an assistant principal, I was not surprised because I have had to discipline the alleged perpetrator in the past.
I called the young man down to my office and confronted him with the allegation and asked him what he had to say for himself. The student was sullen and singularly unconvincing as he denied any wrongdoing. After listening carefully, I looked the student in the eye and told him that I did not believe him, that I believed his accuser, and that he was suspended for ten days.
I was surprised when the student then went super-legal on me. “That’s ridiculous!” he responded. “Haven’t you heard of hearsay? You weren’t there, and you don’t know what happened. It’s word against word. This injustice will not stand!”
As an assistant principal, I am used to jailhouse lawyers, but he did get me thinking. Can I simply choose to believe one student over another in this situation?
Ready to Rule
Dear Ready:
Yes, you may do so. However, as explained below, suspensions at the end of the year are subject to special rules.
To start, we can dismiss the student’s complaint that you relied on hearsay because you did not do so. Hearsay is a statement made by a person who was not directly involved that is accepted for the truth of the matter asserted. An example of hearsay is when an administrator testifies at an expulsion hearing that a student violated school rules (e.g., was in possession of a knife in school) on the basis that someone else told him that. Hearsay is disfavored because the accused cannot cross-examine the witness effectively because the witness did not actually see what he is claiming is true through his testimony. However, in limited cases in which student safety is an issue, hearsay may be allowed in expulsion hearings.
Here, you did not rely on hearsay, but rather the direct testimony of the student who accused the other student of forcing him to hand over ten dollars. As the “judge” in the informal hearing process required before a student is suspended, you have the right to make credibility assessments, and sometimes you will have to decide whether you are convinced of certain facts even when it is the word of one student against another. You had every right to make that credibility assessment here to find that the student you suspended committed the conduct he was accused of.
One further observation is warranted before we leave the subject of hearsay. Conn. Gen. Stat. § 10-233c provides in relevant part:
Unless an emergency exists, no pupil shall be suspended without an informal hearing by the administration, at which such pupil shall be informed of the reasons for the disciplinary action and given an opportunity to explain the situation, provided nothing herein shall be construed to prevent a more formal hearing from being held if the circumstances surrounding the incident so require . . . .
Given that the reference to an “informal hearing,” administrators may rely on hearsay in cases of suspension as they gather the facts and make a determination whether the student engaged in the alleged conduct.
That all said, here’s the wrinkle in the case you describe. Conn. Gen. Stat. Section 10-233a(d) defines “suspension” as follows:
(d) “Suspension” means an exclusion from school privileges or from transportation services only, provided such exclusion shall not extend beyond the end of the school year in which such suspension was imposed. (Emphasis added).
Given this statutory provision, the suspension you imposed two days before the end of the school year ended with the last day of school, and it will not carry over to the new school year. Legal Mailbag is not suggesting that you should have done so, but the only way to extend an exclusion from school into a new school year would be to follow the procedures required for an expulsion.
Best wishes to all for a restful summer!