Student Discipline and Expulsion Defense
Whenever a school threatens to deprive a student of their education through disciplinary actions such as suspension or expulsion, that student is entitled to due process. This right to due process includes the right to notice and a fair hearing prior to the imposition of long-term discipline. If your child is facing any disciplinary action at school, contact the experienced student discipline attorneys at Meilstrup & Brown to determine what rights they have and how best to protect them.
Colorado Law (C.R.S. § 22-33-106) defines grounds for the suspension and/or expulsion of students from public schools. These include, but are not limited to, carrying, bringing, using or possessing a deadly weapon; the sale of drugs or controlled substances; commission of an act that would be robbery or assault if committed by an adult; being deemed a “habitually disruptive student”; disobedience or open and persistent defiance of proper authority; willful destruction or defacing of school property; behavior on or off school property detrimental to the welfare or safety of other students or school personnel; and repeated interference with a school’s ability to provide educational opportunities to other students.
Public school students are entitled to due process during disciplinary proceedings like suspensions or expulsions, so objections or challenges on due process grounds often arise. However, the scope of these challenges varies depending on whether the student is a general education student or a special education student.
The short answer is yes.
In general, a student’s education records are protected by the Family Educational Rights and Privacy Act of 1974 (FERPA). FERPA requires student or parental consent (depending on age of student) prior to the disclosure of a student’s personally identifiable information contained in education records. FERPA defines the term education record as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.” 20 U.S.C. § 1232g(a)(4). This includes disciplinary records. However, “records of the law enforcement unit of an educational agency or institution” are not included within the meaning of “education record.” 34 C.F.R. § 99.31. Law enforcement unit records are an exemption to FERPA coverage altogether, not an exception to disclosure. Consequently, FERPA does not restrict the disclosure of law enforcement unit records at all.
The two most common exceptions to FERPA’s privacy protections are (1) when records are disclosed in “response to a judicial order or lawfully issued subpoena” (provided that the student is notified prior to compliance or provided that a reasonable attempt to notify the student has been made), and (2) when records are disclosed to “other law enforcement agencies in the investigation of a specific criminal case.”
Consequently, anything you say to school officials who are investigating a violation of student conduct may be used against you in a criminal case where those records are either subpoenaed, the subject of a warrant, or part of the investigation into a criminal case. This issue may arise if the basis of the student conduct investigation is also a violation of state or federal law (e.g., drug possession or distribution, assault, sexual assault, theft, etc.).
Led by attorney Lindsay Brown, the team at Meilstrup & Brown has extensive experience advocating on behalf of students accused of a wide variety of academic and other misconduct at public and private schools across Colorado. We are experts in Colorado law as applied to suspension and expulsion proceedings, and students’ rights to due process. We have successfully navigated complex and high-stakes disciplinary, suspension, and expulsion proceedings at nearly every university in Colorado, and in many public school districts across the state. We know the pitfalls and the steps a student may need to take to secure his or her education at a particular school. While the approach in each case varies, the following are among the things on which you can count on us to do for you:
- Meet with you to determine the status of the case, hear your side of the story, and identify your goals.
- Retrieve and review records associated with the proposed disciplinary action;
- Confer with counsel for the school or university to try to negotiate a preferred resolution if appropriate.
- Investigate and gather evidence pertinent to your defense.
- Attend meetings with school officials.
- Advocate on behalf of the student at the disciplinary hearing.
- Compile compelling mitigation to present to school officials in the course of a decision regarding an outcome or sanction.
Having an experienced school discipline attorney by your side during any student conduct investigation or related disciplinary process can mean the difference between expulsion or removal from school and being admitted back into the academic environment you worked so hard to attend.
