Students' Rights to Counsel in Suspension Hearings

Education Attorneys
August 01, 2003

In re Roberts

In In re Roberts, 356 N.C. 660 (2003), the North Carolina Supreme Court declined to review a decision of the Court of Appeals that examines the due process requirements for student long-term suspension hearings. In this case the lower court held that the United States Constitution requires that students “have the opportunity to have counsel present, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident” at these hearings. In re Roberts, 150 N.C. App. 86 (2002). This action by the North Carolina Supreme Court makes the decision of the Court of Appeals final and controlling.

In this Buncombe County case, a male high school student walked up to a female student who was seated at a table in English class, and made a sexually aggressive gesture and statement to the girl. The female student reported the conduct to the assistant principal, who questioned other students and confirmed the report made by the female student. After his initial investigation, the assistant principal called the accused student into his office and informed the student of the complaint against him. The student initially denied the offensive statement, but later admitted it. The assistant principal then informed the principal of the incident. The principal concluded that the statement violated the school board’s policy against sexual harassment. He suspended the student for five days and recommended that the student be long-term suspended through the end of the semester.

The student retained an attorney and requested a hearing before the school system’s hearing board. The school system did not permit the attorney to attend the suspension hearing. The board policy allowed a student to have an adult present, in addition to the parents, at suspension hearings to advise the student, but the adult could not examine witnesses or actively represent the student in the hearing and could not be an attorney. The hearing board conducted a hearing and adopted the principal’s recommendation. The superintendent approved the recommendation and the student appealed the decision to the board of education. The board upheld the long-term suspension and the student appealed the board’s decision to superior court. The superior court ruled in favor of the student and the school board appealed.

The issue before the Court of Appeals was whether the Due Process Clause of the United States Constitution requires that school systems allow a student facing long-term suspension to have an attorney present at the suspension hearing. Both the superior court and a unanimous panel of the Court of Appeals answered this question affirmatively. The Court of Appeals acknowledged both the student’s interest in avoiding “mistaken” suspensions and the school district’s interest in “maintaining security and order in the schools.” The Court of Appeals concluded that constitutional due process principles require that a student be allowed to be represented by an attorney at long-term suspension hearings.

Although the issue was not directly raised by the facts in this student’s appeal, the Court of Appeals also addressed whether a student has a constitutional right to confront and cross-examine witnesses and call witnesses on his own behalf in student suspension hearings. The court concluded that a student facing long-term suspension must be allowed “to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.”

The Buncombe County school board appealed the court’s decision to the N.C. Supreme Court. Numerous parties filed amicus briefs — the Children’s Education Law Clinic, the American Civil Liberties Union Legal Foundation of North Carolina, Inc., the North Carolina Justice and Community Development Center, the North Carolina Child Advocacy Institute, Legal Aid of North Carolina, Inc., the Council for Children, the Children’s Law Center, Legal Services of Southern Piedmont, the Child Advocacy Commission of Durham, North Carolina Central University School of Law Juvenile Law Clinic, the North Carolina Academy of Trial Lawyers, and the North Carolina Association of Women Attorneys filed on behalf of the student; the North Carolina School Board Association filed a brief in support of the school district. In its brief, NCSBA cited cases from other state courts and the 4th Circuit Court of Appeals that supported the view that a student is not entitled to have an attorney present at a long-term suspension hearing. These courts have recognized that due process does not require the same formalities of a court proceeding for a student suspension hearing, recognizing the undue administrative burden resulting from such extensive procedures.

After agreeing to hear the appeal and later hearing oral arguments by the parties, on February 5, 2003, the Supreme Court issued a brief order: the court dismissed the appeal on the grounds that it had been “improvidently allowed.” In other words, the court decided that it should not have agreed to consider the appeal in the first instance. Therefore, the Supreme Court did not decide the issues in the Roberts case, and the Court of Appeals decision is left intact.

Implications of In re Roberts

While the Court of Appeals’ decision appears rather clear, in fact, there is some uncertainty and room for interpretation. First, the only question squarely before the court was whether a student is entitled to have an attorney present at the evidentiary hearing on a long-term suspension. Whether a student has a right to confront and cross-examine witnesses and whether a student has a right to call his own witnesses were not issues directly raised by the facts of the case. Under the rules of judicial decision-making, the court’s ruling regarding these “extra” questions is called “dicta.” Generally, dicta is not considered binding legal precedent.

Second, the court stated that a suspended student has a right to confront and cross-examine witnesses “or” to call witnesses supporting his version of the incident. The use of the word “or” creates further ambiguity. Unfortunately, until the North Carolina appellate courts provide further judicial direction about what they believe is absolutely necessary to satisfy principles of due process, lower courts are likely to interpret the Roberts holding broadly. Certainly students’ attorneys will cite the Roberts decision in support of their demands that the school system make student witnesses available for cross-examination and that the suspended student be entitled to call a number of witnesses on his or her behalf.

In light of the ambiguity in the court’s holding, we recommend the following practices to avoid constitutional due process challenges to your suspension procedures:

  • 1. Must school systems permit students to bring attorneys to long-term suspension proceedings? YES.

The Roberts decision clearly requires that schools systems allow every student facing a long-term student suspension to have an attorney present at the evidentiary suspension hearing. This means that each school system should review its policies to make sure that board policies (and administrative procedures) comply with this requirement.

This decision does not, however, require schools to provide counsel for students or to advise them about this “right” to an attorney. In other words, school administrators may conduct their investigations of student misconduct and interview students (including the accused) about the student misconduct without first advising the accused student of this “right” to have an attorney present during a suspension hearing. Even after school administrators make a decision to recommend a long-term suspension, they do not need to affirmatively tell a student that he or she may bring an attorney to disciplinary proceedings. The Roberts decision simply requires that if a student retains an attorney and wants to bring that attorney to the long-term suspension hearing, the school system must allow the student to do

  • 2. Must school systems call student witnesses to support long-term suspension recommendations? MAYBE.

The Roberts decision states that students recommended for long-term suspension may be entitled to “confront and cross-examine witnesses supporting the charge.” As noted above, however, the Court’s ruling with respect to this potential “right” to cross-examine is muddy, and the school system’s obligation to bring student witnesses into long-term suspension hearings is not crystal clear. Nonetheless, because the Roberts opinion encompasses this issue, school systems should address it.

We recommend that at each long-term suspension hearing the school system have the administrator who conducted the investigation available to testify and answer questions on cross-examination. Additionally, we recommend that school administrators make every effort to have key student witnesses participate in long-term suspension hearings. We recognize that there will be times when the student and/or their parents will refuse to have the student participate in these hearings. If a key student witness refuses to participate in a long-term suspension hearing, school administrators should determine why the student is refusing. If the refusal is based on a reasonable fear for the student’s safety or of reprisals as a result of testifying, courts are more likely to allow a written statement or hearsay testimony of the student’s account by the school administrator. When a key student witness does not appear at the school’s evidentiary hearing on long-term suspensions, the school administration should make clear at the hearing: (1) why the student is not appearing at the hearing and (2) why the administrator considered the student witness to be credible and reliable during the administration’s investigation. The administrator should also try to obtain a written statement from the student, even it is unsigned to protect the student’s identity. An account of the key events in the student’s own words can be helpful in supporting the administrator’s testimony.

  • 3. Must school systems require witnesses to participate in hearings on behalf of the accused student? NO.

The Roberts decision states that a student facing long term suspension must be allowed to confront and cross-examine witnesses or call witnesses in his behalf. Significantly, the decision does not require school administrators to arrange for the presence of the student’s witnesses at the evidentiary hearing. Therefore, the responsibility for obtaining the presence of these witnesses lies with the student facing long-term suspension.

While it is true that boards of education have the power to subpoena witnesses to board meetings, evidentiary hearings regarding long-term suspensions typically are not before the board. These hearings usually occur at the school or central office level before a panel of teachers or administrators. Teachers and administrators do not have authority to issue subpoenas and require students to attend these suspension hearings. If the attendance of a witness becomes an issue on an appeal to the board, then the board may consider whether it will issue a subpoena and require a particular student to attend and testify.

We recommend the following procedure to address requests for student witnesses at administrative or school-based hearings on long-term suspensions: If a student requests that school administrators call other students out of class to appear as witnesses at a student suspension hearings, the school administrator should tell the student that the school administration is willing to call the witness only if (1) the student facing long-term suspension obtains a note signed by the witness’ parent indicating that the witness has permission to leave class to participate in the suspension hearing and (2) the student facing long-term suspension provides this written permission in advance of the suspension hearing. The school administrators should contact the parents to ensure that they have, in fact, granted the permission represented by the suspended student.


In reaching its decision, the N.C. Court of Appeals cited Goss v. Lopez, the Supreme Court’s seminal decision establishing that a student facing suspension has a right to due process protections, “to avoid unfair or mistaken exclusion from the educational process.” The appeals court decision, requiring that the accused student be given the opportunity to have counsel present and to cross examine witnesses or present witnesses on his behalf, will require many school systems to modify their suspension hearing practices. Unfortunately, the addition of these features may increase the formality of the proceeding and may create a more adversarial atmosphere. Neither due process nor the Roberts decision requires school districts to convert their school hearings into court-like trials, however, and schools should resist any effort to do so. The school system’s focus in conducting suspension hearings should mirror the Supreme Court’s analysis in Goss: devise a fair system that guards against the risk of error “if that may be done without prohibitive cost or interference with the educational process.”

As always, if you have questions about this legal update, please do not hesitate to contact us.