If your child is facing suspension or other school punishment, you’ll want to know how the decisions will be made and what rights your child will have during the process. Generally, individual state laws and local school district policies determine the requirements for discipline proceedings in public K-12 schools. (For more information, see our article on local, state, and federal rules for school discipline.) But because all schools must meet federal standards that protect students’ constitutional rights, discipline policies across the country are remarkably similar.
Students’ rights to “due process” vary depending on the seriousness of the possible outcome. In a 1975 case known as Goss v. Lopez, the U.S. Supreme Court held that students are entitled to due process when they’re barred from school “for more than a trivial period.” Essentially, this means they have the right to defend themselves in a fair hearing. When the suspension is for less than 10 days, the court spelled out minimum due process requirements. The student is entitled to receive at least:
- notice of the specific charges and the proposed punishment
- an explanation of the evidence against the student, and
- an opportunity to challenge the charges in front of an objective person, usually in an informal conference or hearing.
School officials can immediately suspend a student who poses a danger, but they must schedule a hearing as soon as possible afterwards. Some states give students stronger rights in short-term suspensions. See “More Resources,” below, for tips on finding out about your child’s rights where you live.)
Long-Term Suspensions and Expulsions
When students are expelled or suspended for 10 days or longer, most courts (and schools) agree that they should have the opportunity to participate in a more formal disciplinary hearing, where they can present evidence and witnesses. Before the hearing, the school should give the student a list of its witnesses and the events they’ll testify about. Other requirements vary among states, like whether the student has the right to question the school’s witnesses, whether school officials can talk about statements made by someone who isn’t at the hearing (known as hearsay evidence), and the process for appealing the hearing officer’s decision.
Right to a Lawyer?
A federal appellate court has held that secondary school students don’t have the right to a lawyer at school disciplinary proceedings if criminal charges are not pending. However, several states provide this right at formal hearings for long-term suspension or expulsion, as long as the student or parents pay for the attorney.
Other Constitutional Rights
Students also have basic constitutional rights that apply before school disciplinary proceedings have even started. Depending on the situation, school officials who want to question students at school might have to give them a "Miranda warning" about their right to remain silent. And although school officials can search students without a warrant or probable cause, they must have a reasonable suspicion that the child has done something wrong.
Discrimination in Discipline?
According to data collected by the federal government, students of color and students with disabilities are much more likely to be suspended or expelled from school than their white or nondisabled peers. If your child has disabilities, you should know that the federal Individuals with Disabilities Education Act (IDEA) generally prohibits schools from expelling students or imposing long-term suspensions for misconduct that is a “manifestation of the child’s disability,” unless the school follows special procedures. (For more information, see our overview on IDEA and special education law.)
If you believe your child has been unfairly disciplined because of disability, ethnicity, or gender, you can file a complaint with the U.S. Department of Education's Office for Civil Rights or the U.S. Department of Justice. You may also want to talk with a lawyer (more on that below).
When Should You Talk to a Lawyer?
Even if you live in a state where you aren’t allowed to have legal representation at a disciplinary hearing, you’ll benefit from talking to a lawyer.
- Preparation. An attorney can give you valuable advice on how best to approach the proceedings, gather evidence, prepare for the hearing and any appeals, and make sure the school doesn’t trample on your child’s rights.
- Parallel proceedings. If there’s any chance that your child could be subject to criminal charges as well as school discipline, you should talk to an attorney immediately, before your child speaks to anyone about the incident (including school officials or law enforcement officers working on campus).
- Lawsuits. An attorney can help you explore your legal options if you believe the school has discriminated against your child based on race, religion, gender, or disability.
Depending on the specifics of your situation, lawyers with experience in education law and school discipline, juvenile criminal matters, or discrimination claims in an educational setting might be best suited to help you.
Go to main school discipline FAQ page.