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Cross-Examination of Witnesses Not Required at Expulsion Hearing

The United States District Court for the District of Connecticut, Judge Eginton, has ruled in the case of E.K. v. Stamford Board of Education, 3:07cv00800 (WWE) that the due process rights of a student expelled for leaving threatening racist messages on the voice mail of a female student (among other offenses) were not violated when the student was deprived of the ability to cross-examine the female student who made the accusation, in the expulsion hearing.  Adopting the reasoning of other federal courts, the court stated that due process does not afford high school students the right to confront and cross-examine student accusers at expulsion hearings, in part because the administrative investigation provides a safeguard against error, and cross-examination of student accusers is duplicative of the investigative efforts of school personnel. In addition, “the presence of corroborating evidence diminishes the potential value of cross-examination at the expulsion hearing.”  Balancing the student’s right to due process against the school’s interest in conducting an efficient disciplinary hearing, the court concluded that any provision disallowing the use of hearsay statements and requiring confrontation of student accusers would be overly burdensome to schools due to the increased challenge of maintaining order and discipline.

Citing the benefits of an administrative expulsion process as one that avoids the cost and complexity of adversarial litigation, the court also highlighted the strong interest of schools in protecting the identities of students who cooperate with investigations into the misconduct of fellow students.  Such students are unlikely to come forward with information leading to enforcement of the student code of conduct if they are faced with the prospect of cross-examination by their fellow student and his/her attorney.

It should be noted that in this case, it appears that the identity of the female accuser was protected and she was not brought to testify in the expulsion hearing.  Instead, a tape recording of the voice message was played, and other written materials may have been presented in the nature of investigation or incident reports by school personnel.  To the extent that a witness is brought to the hearing to testify in person and the identity of that person is disclosed, the court seems to support the notion that the student who is the subject of the hearing would have the right to cross-examine that witness.