The Law of Colorado Public School Discipline — Part 4
One very important thing to bear in mind is that public schools themselves cannot expel students. Rather, schools can only recommend to the governing school district that a student be expelled. Ultimately, it is up to the superintendent of the school district to determine whether a student will be expelled, and his or her decision can be reviewed by the governing school board.
Under C.R.S. 22-33-105(1)(c), once a public school makes a recommendation for expulsion, the student under expulsion proceedings will go to a hearing. At the hearing, a hearing officer will preside. The hearing officer is someone the school district has hired. During the hearing, the school normally will be represented by a dean in charge of discipline and/or an assistant principal. The representative of the school will state the reasons that expulsion is being sought. On the other side will be the student and the student’s parent(s). The student’s family is allowed to bring an attorney to the hearing, and the attorney is allowed to ask questions of the participants at the hearing. However, parents and attorneys must bear in mind that an expulsion hearing is not a courtroom. Things like rules of evidence and hearsay don’t apply in an expulsion hearing, which is actually quite informal. When I was a dean seeking expulsion at a hearing, I sometimes would see criminal-defense lawyers with zero experience in education law come into a hearing and start raising all kinds of objections based on various rules of evidence, and on occasion they also would start badgering school representatives. They would embarrass themselves and frustrate the hearing officer. Ultimately, they would end up doing more harm than good. Parents have to bear in mind that a criminal-defense lawyer or a lawyer with expertise in another field is not an education lawyer. Hearing officers do not like overly aggressive attorneys, and they don’t like to see school representatives being treated disrespectfully.
At the conclusion of the hearing, the hearing officer must forward his or her recommendations to the school superintendent, who has five days after the hearing to issue a decision as to whether the student will be expelled and, if so, for how long. If the student is expelled, his or her parents will have ten days to appeal the expulsion to the local school board. The school board, then, will have the final say regarding the expulsion – unless, of course, parents challenge the board’s decision in court.
One final word should be mentioned in this section regarding expulsion, and it’s a very important one concerning expulsion of special education students on an IEP (Individualized Education Program/Plan). Such students are specially protected under various laws and under C.R.S. 22-33-106(1)(c). Whenever a school files for expulsion against special education students, it must make a “manifestation determination,” in which a special education team – working with the student and his or her parent(s) – determines whether the conduct for which the student is being expelled is a manifestation of his or her disability. A meeting to make this determination must be held within 10 day of the school’s filing for expulsion. If it is determined that the student’s conduct is a manifestation of his or her disability, the student may not be expelled. If it is not, then the student may be expelled and ultimately is treated no different than a student who does not have an IEP.