SC LEGISLATURE EXPANDS THE RIGHTS OF STUDENTS FACING EXPULSION

South Carolina law, in S.C. Code Ann. §59-63-240, affords certain rights to students facing an expulsion recommendation.  The statute recently was amended to expand those rights, particularly as they relate to the student's right to legal counsel and the student's right to access the school's entire investigative file three days prior to the expulsion hearing.  

Prior to the amendments, §59-63-240 stated that any student facing expulsion has the right to “legal counsel and all other regular legal rights including the right to question all witnesses.”  The amended law requires that, in the letter notifying parents of the legal rights associated with an expulsion recommendation, school officials also must provide contact information for legal aid services.  The amended law also provides students and parents/guardians the right to access the school's entire investigative file related to the incident leading to the expulsion recommendation, including all documents and videos that are part of that file. The law states school officials may exempt certain documents from disclosure and redact certain portions of videos in accordance with the applicable provisions of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g), commonly known as FERPA. 

These amendments to §59-63-240 could significantly impact the expulsion process.  Initially, more families may secure legal counsel to attend the expulsion hearing with them if they qualify for free or reduced cost legal services.  Depending upon your district's policy regarding attendance of attorneys at expulsion hearings, districts may incur additional legal expenses if their policy requires an attorney to be present on behalf of the district.  The increased presence of attorneys also may lead to more appeals to the district's board of trustees.

The provision requiring districts to notify families of their right to access the school's entire investigative file, including documents and videos, will require school officials to carefully consider the information they collect and maintain during an investigation into a disciplinary incident.  For example, if a district has collected student statements, those statements will have to be provided to the student facing expulsion unless the district can present a reason pursuant to FERPA why those statements are exempt from disclosure.  Further, while many districts may have taken the position that a parent/guardian of a student facing expulsion does not have a right to view a video that depicts other students, the amended law makes it clear that districts will have to allow the parent/guardian to view the video, subject to redactions that the district may have to make pursuant to FERPA.

Interestingly, the recent amendments do not delineate or otherwise define “all other regular legal rights” as set forth in §59-63-240.  It is our opinion that this undefined phrase will continue to serve as the basis for arguments by attorneys representing students that the law provides a student the right to subpoena potential student and employee witnesses to attend the expulsion hearing. Attorneys for students also may argue they have a statutory right to question all witnesses to an incident, regardless of whether the administration chooses to bring those students to the expulsion hearing. At some point, it is inevitable that a state court will answer these questions in the context of a court appeal of an expulsion decision.

As the amended law went into effect upon the Governor's signature earlier this month, districts should review their expulsion policies, administrative rules and discipline letters to ensure they encompass the new requirements.  We also recommend districts provide regular training regarding the investigative process to their administrators responsible for handling discipline to ensure that statements and videos are appropriately handled in accordance with the law.

If your district needs assistance in revising documents and/or with training, please feel free to reach out to our office.