Parents: protect your student from Virginia public school discipline
For more than thirty years, I have represented Virginia public school students in disciplinary hearings and in related criminal prosecutions. Parents must be careful that what occurs in the disciplinary process does not negatively impact any related criminal case. With the assistance of experienced legal counsel that can be avoided. At times experienced legal counsel can shape the disciplinary process to gain an advantage or mitigation in the related criminal prosecution. The following is a summary of key points to know if your student faces potential discipline:
Public school officials have broad legal authority to search students and their property when there is a valid safety concern. Even police officers have this authority. Keep in mind that you may not be able to stop a search. However, if any such search results in evidence that could be used in a criminal prosecution, there must have been an independent valid basis for the search, or the evidence may be excluded from the prosecution.
What this means is that neither the parent nor the student should ever consent to, agree to, or give either school staff or a police officer permission to search. If valid consent is given, the law makes the results admissible in criminal court even if the search had otherwise been unlawful. You or your student should always clearly state that any search is being conducted against your will and without your permission.
There is no legal requirement that your student must provide either an oralstatement or a written statement, period. No matter what some school official or officer tells you or your student, never agree to provide any written or oral statement. I have never seen any statement actually benefit a student in the disciplinary process. What is typical is as follows: 1. If the student admits a violation and states remorse, they are praised for their cooperation and remorse, but the disciplinary hearing officer then proceeds to impose the intended punishment noting that they have no choice because the violation is admitted. Worse, that admission could then potentially be used in a later criminal prosecution. 2. If the student denies the violation in whole or in part, the disciplinary hearing officer writes them up as being dishonest and imposes the intended punishment. Never provide a written or oral statement absent it being coordinated with experienced legal counsel, if at all.
Increasingly, public schools are permitting parents to hire court reporters for the disciplinary hearings. Always do this if you can. I have often used the hearing transcripts to reverse or reduce the punishment on appeal or to defeat or reduce a related criminal prosecution. If there are any key factual or legal issues to be used to try and defeat or reduce either the disciplinary sanction or a related criminal charge, a court reporter transcript is essential. Audio recordings of the disciplinary hearings simply do not compare in quality or clarity.
As you may have inferred, assistance of experience legal counsel can be of great importance to your student’s case. While that assistance may or may not impact the disciplinary sanction, it could have a substantial impact upon any related criminal prosecution. Even within the disciplinary system, if there is any possibility of obtaining a positive result, it is highly challenging in the absence of knowledge of both the process and the law. Additionally, these hearings are highly stressful for both parent and student. The assistance and presence of experienced legal counsel greatly assist in coping with the stress of such a challenging process.
The public-school disciplinary process is fraught with peril for your student. Despite what may be said to you about concern for your student, once the student is charged with a violation, the process is built to exclude your student from school and the focus shifts on protecting all other students and staff against your student. Knowledge of the process and your rights is critical.
Of course, the best protection is for your student to not violate the law or the disciplinary rules. School officials and police officers are far more experienced than your student. Your student, even if later, will be caught. Social media postings inevitably surface, including those purportedly designed to be temporary, both in disciplinary hearings and in criminal prosecutions. Do not violate the rules. Do not violate the law. Do not ever post anything on social media that could come back to implicate you or to paint you in a manner deemed as a threat or a disruption. If you can instill that discipline in your student, you hopefully will never have to concern yourself with the remainder of this article.
David A. Hirsch, Esq.