In criminal law, the right of defendants to confront the witnesses against them is enshrined in the Sixth Amendment to the U.S. Constitution.
But in school disciplinary proceedings, accused rule-breakers do not enjoy a similar right, two courts ruled recently in separate cases.
Though the legal question isn’t entirely novel, it has come up relatively rarely, given the frequency of hearings on student suspensions and expulsions.
In an Illinois case, a high school freshman was expelled last year based on charges that he had twice brushed the buttocks of one of his teachers with the back of his hand. Officials in Plainfield School District No. 302 relied in part on statements from three students who claimed to overhear the accused freshman make inappropriate sexual comments about the teacher.
In a suit challenging the expulsion, the student’s lawyers argued that he had not received a fair hearing because he was not permitted to cross-examine the unidentified students.
U.S. District Judge Ruben Castillo of Chicago held, however, that students in disciplinary proceedings do not have a 14th Amendment due-process right to confront the witnesses against them.
“Schools have a strong interest in protecting students who come forward to report misconduct by their peers,” the judge said in a Nov. 27 decision upholding the expulsion.
In another recent case, a state appeals court in New Mexico also rejected a student’s argument that being unable to confront witnesses violated his due-process rights.
The case involved a student suspended for one year by the Las Cruces, N.M., district for possession of marijuana and a weapon—a ceremonial sword—on school grounds. The student had sought to cross-examine three fellow students.
The three-judge appeals panel held unanimously on Oct. 1 that students who choose to report misconduct to school authorities could face “ostracism at best and perhaps physical reprisals” if they were forced to appear before their accused peers.
A version of this article appeared in the January 09, 2008 edition of Education Week