Can A Bystander Be Suspended From School?

 By Michelle Ball, California Education Attorney for Students since 1995

What does it take to issue a valid school suspension?  Does a student have to DO something, or can they just be near someone who does something?  Over the years, I have seen bystanders (aka witnesses) punished by schools when they did nothing but watch others do wrong.  When are students who witness a wrong done by another guilty of an offense which can be properly punished by a school? 

The California Education Code lists out all the potential areas for which a student may be suspended or expelled.  It also lists out things that schools CANNOT punish students for.  Things not listed as suspension-eligible offenses are also not suspendable.  Schools are limited by these state laws, voted in by our legislature.  Of course, the codes can be vague, and cover a LOT of areas of alleged wrong, from arranging a drug sale, to possession of nicotine products.  

But what about bystanders or witnesses to an event?  What about the kid who watches as someone sells drugs to another but says nothing?  Or, the students who run to a fight and just stand there?  Unfortunately, sometimes schools punish students by association, believing as they were there, that they participated in the wrongful action.  

If a school validates a student did not actually commit a wrong, most just obtain their statement about the events and don't suspend the innocent student.  

Some, however, do.

A prime example I have seen is a school which suspended students observing a fight.  It seems that the school morphed a kid standing near a fight into an offender, claiming willful defiance.  I disagree strongly that standing near someone committing an actual prohibited act makes someone guilty of a wrong.  No suspension should issue when a student does not knowingly DO something prohibited.

Under Education Code section 48900(k), students may be suspended for willful defiance or disruption, but only if they are in ninth through twelfth grade, and it is highly questionable whether standing near a fight is defiant.  This in fact could be protected speech.  

These types of alleged bystander offenses should  be challenged by parents.  

The only disclaimer here, is the fact that California courts have sided with the schools, even for offenses which don't "fit" in delineated suspendable offenses, such as the restriction of students' ability to wear an American Flag shirt on Cinco de Mayo, to prevent alleged gang issues.  So, although I see no grounds for bystander offenses, the courts sometimes surprise you, supporting an almost dictatorial control over all kids under a school's authority.  

Best,

 

Michelle Ball

Education Law Attorney 

 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

 

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting.  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.

READ MORE - Can A Bystander Be Suspended From School?

Medical Marijuana Administration And School Discipline

 By Michelle Ball, California Education Attorney for Students since 1995

In 2020, students were granted the right to have medical marijuana administered to them in school by their parent or guardian IF formally authorized by their school district.  The circumstances surrounding this potential opportunity can be confusing and if the law is not followed properly, could lead to discipline.

Per Education Code §49414.1 (aka JoJo's Law), it is up to each school board

if they will implement a policy to allow a parent to administer medical marijuana/cannabis at their schools.  If there is no policy in place allowing this, there is no right to administer medical marijuana at school.

If there is a board policy, per §49414.1: 

(c) The policy shall include, at a minimum, all of the following elements:

(1) The parent or guardian shall not administer the medicinal cannabis in a manner that disrupts the educational environment or exposes other pupils.

(2) After the parent or guardian administers the medicinal cannabis, the parent or guardian shall remove any remaining medicinal cannabis from the schoolsite.

(3) The parent or guardian shall sign in at the schoolsite before administering the medicinal cannabis.

(4) Before administering the medicinal cannabis, the parent or guardian shall provide to an employee of the school a valid written medical recommendation for medicinal cannabis for the pupil to be kept on file at the school.

If your child receives medical marijuana and you would like to administer it to them during their school day, check your district's board of education page to see if there may be a board policy in place.  If there is, it is critical that it is read and understood as far as what exactly IS allowed.  

If a parent does not follow the rules of their district exactly, the student could be disciplined.  For example, if a parent just can't get to school that day, and rather than forego giving the medication, they hand the medical marijuana to the student to stick in their backpack.  This is not allowed and discipline could result.

There remain laws on school discipline allowing suspension or expulsion for possession or being under the influence of marijuana, and this legal conflict has not been addressed.  As such, parents may want to formally confirm that if their child is "under the influence" due to allowed medical marijuana, they will not be punished as this "influence" is medically authorized and allowed by board policy. 

Parents may also want to explore a 504 Plan or Individualized Education Program (IEP) to see if the medication use or administration options (and other supports) may be addressed in one of these plans. 

There is still a lot of confusion surrounding medical marijuana at school, and students get punished for matters relating to cannabis very frequently.  Be sure your child won't.

Best,

 

Michelle Ball

Education Law Attorney 

 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

 

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.

READ MORE - Medical Marijuana Administration And School Discipline

School Suspension And Expulsion For Fighting Or Threats of Harm

By Michelle Ball, California Education Attorney for Students since 1995

There are a multitude of bases for student discipline.  One of those bases involves fighting (aka "mutual combat"), threats, and/or physical violence to another.  Such conduct may or may not get a student suspended or placed up for expulsion.

Per California Education Code 48900(a)(1) for a student to be suspended or expelled for this type of conduct, they must have:

- Caused, attempted to cause, or threatened to cause physical 
injury to another person, or

- Willfully used force or violence upon the person of another, 
except in self-defense.

But, what does this mean in "real life?"  It means student fighting, threats to hurt someone (even vague ones), and responding in a physical way when attacked by another student, can get a student punished.

Fighting in schools, unfortunately may not be what you think, as the schools deem anyone responding physically to an attack as being involved in that fight.  

Although self defense is listed as an excuse which should prevent discipline, self defense is rarely accepted as a reason to NOT punish, unless a student who is assaulted runs away to the office, to an adult, or curls up in a fetal position to take the beating...  I am not being sarcastic. 

For example, if a student is hit by another student, and hits back, the schools usually deems this "mutual combat," and suspend both kids, regardless of who started it.  The insertion of the words "except in

self-defense," is very confusing as schools usually ignore this phrase, and suspend students if they engage in any form of physical altercation, and even if the student has no other choice (e.g. they are attacked).  

There are times when schools may allow the self defense "excuse," for example, when it is glaringly obvious, such as with a gang beating, but for the most part in a two student battle, both will be punished regardless of who started it.

Additionally, the mere "threat" of physical harm can get a student punished.  A "hit list" against students or teachers, threats to students or school personnel on social media, in threatening or violent essays, and even drawings of guns and destruction can land a student in the discipline hot seat.  First

Amendment free speech issues may arise, but schools usually ignore such rights if they exist at all, claiming an immediate and disruptive threat.

Whether a student actually will be punished for such conduct each time is up to the school. 

Usually in the student handbook will be a grid with a list of crimes and the possible punishment for each.  With fighting, or other physical harm, the schools will usually allow suspension OR expulsion even on a first offense.

In the "old days," students could probably defend themselves for real and not be suspended, but in our "zero tolerance" world, this is not the case. Students are expected to take a beating or run away so they won't be in trouble.  

Alas, no one ever said that school discipline was logical or reasonable, and I would certainly never make that claim.

Best,

 

Michelle Ball

Education Law Attorney 

 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

 

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.

Originally published 5/5/11, updated 1/16/18, 8/21/20

READ MORE - School Suspension And Expulsion For Fighting Or Threats of Harm

School Suspension Or Expulsion For Bullying

By Michelle Ball, California Education Attorney for Students since 1995

Do you remember the school bully?  Or, maybe you have seen movie depictions such as the red haired youth with his raccoon fur hat who terrorizes the main character, Ralphie, in A Christmas Story.  Bullying can occur anywhere in schools: in the classroom, in the bathroom, in the office, behind a building, on a field trip, on the way to or from school -- wherever students interact.  Bullying conduct, or actions that someone says are bullying, may result in a student being suspended or expelled. 

Per California Education Code section 48900(r), students who bully can be removed from school. Bullying is defined generally as:

[A]ny severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act ...that has or can be reasonably predicted to have the effect of one ore more of the following [on a "reasonable pupil"]: 

1)  Places the student in fear of harm (for themselves or their property).

2)  Has a "substantially detrimental effect" to the student's physical or mental health.

3)  Causes substantial interference with the student's academic performance.

4)  Causes substantial interference with the student participating in or benefiting from "the services, activities, or privileges provided by a school. [information summarized not quoted]

When implemented, the legislature did attempt to limit the application of this statute to require "substantial" interference in three out of four of the categories.  However, they did not provide a definition as far as what amounts to "substantial interference," nor explain what a "substantially detrimental effect" to a reasonable student might be.  

The overbroadness of this statute means that practically anything can come under the "bullying" heading as many things kids do could put almost anyone "in fear of harm." 

Unfortunately, when disciplining students, schools require a low level of proof that an offense has occurred.  He who speaks first is believed.  And it does not help matters that expulsion hearings are usually in front of a panel of hand-picked District employees who will hear and decide on the matter.

The many ways actual and perceived bullying can manifest in school would be a good topic to go over with kids, so they can avoid a suspension or expulsion, as well as report bullying if seen to start the mandated investigation of process so they can help prevent it.  If you find your child being punished for "bullying," don't fear: with a thorough review of the legal codes and evidence, you just may show no bullying actually occurred. 

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.

Originally published on August 27, 2012, updated July 15, 2020

[This communication may be considered a communication/solicitation for services]

READ MORE - School Suspension Or Expulsion For Bullying

Will Lack of Social Distancing Or Threats To Touch Someone Be Suspendable and Expellable Offenses When Students Return To School?

By Michelle Ball, California Education Attorney for Students since 1995

Schools and students are in turmoil in California, with all pushed to distance education for fear of  the "invisible enemy" aka Coronavirus.  But what about the upcoming fall and the 2020-21 schoolyear?  How will students return to school in the Coronavirus "new normal" and how will school restrictions be enforced?  Imagine kids prior normal actions at school (running, hanging out, talking, high-fiving, texting, laughing, playing sports together, walking through crowded hallways) and now imagine those actions 6 feet apart.  How will schools stop kids from interacting and how will they be punished if they do not socially distance?  I am not looking forward to finding out.

It is hard to imagine kids playing on a playground and social distancing, isn't it?  Let's take a 5, 10 or even a 16 year old and try to keep them 6 feet away from their friends.  How will this work?  What about in physical education (PE)?  Will they just jog alone or play tennis?  There are innumerable questions and serious concerns on how this will be managed.  It is not hard to envision a heavy type of authoritarianism will exist in schools to enforce the new standards.  In this new "normal" what will schools do to stop kids who run within 6 feet of someone or who shake someone's hand?  Will they be suspended, or even expelled for placing someone in theorized danger?  I hope not, but I am not sure.

California students will have to navigate severe restrictions and face a new class of offenses that at this time can only be imagined, such as:

-  Being within 6 feet of another.
-  Not sanitizing properly
-  Threatening others with touching, spitting or breathing on them
-  Lying that they have Coronavirus to intimidate and scare others
-  Threatening to bring Coronavirus to school
-  Touching a friend, teacher or staff member (e.g. high-fiving, hugging, poking, bumping into someone)
-  Touching things around campus
-  Not sanitizing their desk or seat, etc. when they change classes
-  Playing in groups
-  Playing contact sports
-  Using someone else's stuff
-  Going to the bathroom when someone else is using it
-  Sitting in the wrong seat, spot or being in a place not marked with a taped "X" 

-  Not wearing a mask (if required)
-  Whispering to each other
-  Coughing or sneezing and not covering up the cough/sneeze
-  Coming to school with a fever or sick
-  Not reporting when a family member is sick
-  Posting on social media related to Coronavirus in a way that threatens students or creates a school disruption

There are no direct provisions in the California Education Code for suspension or expulsion for failure to social distance, or for students not waiting their turn, YET, but there are provisions in the Education Code for suspension or expulsion for other things that I fear may be used against kids.  

Education Code §48900:

This code section allows suspension or expulsion for many things, including threatening someone, disruption/defiance, and bullying:

A pupil shall not be suspended from school or recommended for expulsion, unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has committed an act as defined pursuant to any of subdivisions (a) to (r), inclusive:

(a)(1) Caused, attempted to cause, or threatened to cause physical injury to another person...

(k) Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties. [expulsion and suspension may be limited depending on grade level]...

(r) Engaged in an act of bullying. For purposes of this subdivision, the following terms have the following meanings:

(1) “Bullying” means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils as defined in Section 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following:

(A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property.

(B) Causing a reasonable pupil to experience a substantially detrimental effect on the pupil’s physical or mental health.

(C) Causing a reasonable pupil to experience substantial interference with the pupil’s academic performance.

(D) Causing a reasonable pupil to experience substantial interference with the pupil’s ability to participate in or benefit from the services, activities, or privileges provided by a school.

So, if a student threatens another student with coming close to a friend and "getting" them, will this mean they are threatening them with harm?  What if a student purposefully intimidates a student who is very fearful of Coronavirus?  Will this be bullying?  If a student refuses to stand apart from friends trying to play, will they be sent to the office?  What if they want to run around separately, but accidentally run into each other- will they be expelled for endangering someone?  Is this even far-fetched in the current climate of California?  Not necessarily.  This is just one more minefield they will have to navigate.

Another code section which could conceivably be twisted into a tool to punish during the Coronavirus panic is Education Code §48900.4, which states:

...a pupil enrolled in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has intentionally engaged in harassment, threats, or intimidation, directed against school district personnel or pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of either school personnel or pupils by creating an intimidating or hostile educational environment.

The student who threatens another daily with touching them, with being next to them on the bus, with breathing on them, could conceivably have this code thrown at them to punish.

What about Education §48900.7?  This section allows suspension or expulsion for making threats of grave harm which can be immediately carried out:

(a) ... a pupil may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has made terroristic threats against school officials or school property, or both.

(b) For the purposes of this section, “terroristic threat” shall include any statement, whether written or oral, by a person who willfully threatens to commit a crime which will result in death, great bodily injury to another person, or property damage in excess of one thousand dollars ($1,000), with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, or for the protection of school district property, or the personal property of the person threatened or his or her immediate family

One can only imagine a student saying he spit on his hands and rubbed all the doors and handles, or who did not wash his hands (or gloves if required) before he came to class, or who tells many people he has Coronavirus and will purposefully make the school sick (despite not having it), being accused of terroristic threats. 

As I frequently see kids unfairly suspended and expelled, this is just one more concern I have when kids return to school under California's strict Coronavirus control measures.  Ultimately, it will be up to the reasoned application of discipline rules to students by school administrators and the strong advocacy of parents.  Let's hope schools use their discretion to discipline wisely in the "new normal."  We shall see.

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - Will Lack of Social Distancing Or Threats To Touch Someone Be Suspendable and Expellable Offenses When Students Return To School?

Eight Things NOT To Do At A School Expulsion Hearing

By Michelle Ball, California Education Attorney for Students since 1995

School expulsions can be devastating for students, emotionally and otherwise, ending up with kids sent to a continuation school and damaging college entrance chances.  It is important to know what NOT to do when parents are fighting for their child's future at an expulsion hearing.  

Here are some things parents should NOT do at a school expulsion hearing:

1)  Consider not allowing your child to testify if they have not already confessed.   Make the school district prove their case, and don't do it for them.  The school district has the burden of proof and no child is mandated to testify.  The testimony decision is highly fact dependent and there is no black and white rule.  Whether the student speaks at hearing may depend on the level of proof the school has, whether the parents will appeal, if the hearing will involve simply a "mercy plea," and other factors.  Caution is advised in making this decision.

2)  Do not forget to object to improper evidence.  If the school district attempts to admit evidence which should not be allowed into the hearing (e.g. evidence from another student who was not there), parents must not stay silent.  Rather, parents should speak up and ask for it to be disallowed, or if the item was already admitted into evidence, have it immediately taken out of the record.

3)  Do not get emotional at the hearing if possible.  If a parent is the one making the arguments at the expulsion hearing, he or she should attempt to keep strong emotions under control, particularly anger.  Parents don't want to alienate whomever is judging the child's expulsion matter, so logic and reason should be used to defend the student.  Parents should never yell or raise voices, regardless of the frustration level at the hearing.

4)  Do not forget to prepare opening and closing statements and witness questions.  Parents usually can make an opening and closing statement, plus question any and all witnesses at the hearing.  However, in the heat of the moment, parents may forget something critical, so a good outline should be developed with all legal and factual arguments as well as questions for anticipated witnesses.

5)  Do not forget to submit documents.  Parents should submit character letters in support of their child, along with any other documentary evidence which proves innocence.  Parents may also want to consider submitting a document which persuasively argues their defenses.

6)  Do not take it personally.  The school expulsion hearing may feel personal, but don't take it that way.  Act professionally at all times or the review panel may tune you out.

7)  Do not forget the district is not being "nice."   Although everyone on the other side may be outwardly polite, the school and district are trying to expel the student.  If they were not, they would have dropped or negotiated the matter before the hearing.  Parents cannot go into an expulsion hearing naively believing that everyone will understand once they get there, or they will win due to sympathy for their child.  

8)  Don't forget to bring witnesses to support your case.  Parents should bring students or others to the hearing to support the student's defense via live testimony.  If parents cannot get a hold of witnesses, subpoenas can be sought from the district prior to the hearing.

Parents need a little luck and good management skills when battling the lions trying to expel a child.  If not, a school expulsion can leave an expelled child adrift and with a black mark they may never get over.

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

Published 2/5/12, updated 5/5/20

READ MORE - Eight Things NOT To Do At A School Expulsion Hearing

Online Learning Opens Door For More Student Punishment If Students And Parents Are Not Careful

By Michelle Ball, California Education Attorney for Students since 1995

As students have been pushed to online learning by Coronavirus, everything may outwardly seem very safe and innocent to parents, with kids attending distance classes quietly.  However, online school creates new opportunities for students to be disciplined by their school, and even suspended or expelled.

Recently, students, in addition to random hackers, have been attending online classes and (intentionally or unintentionally) making rude comments, playing inappropriate music, using fake names that a teacher may say (unaware of the rude context), playing pranks on their classes or instructors and causing other havoc which may not have occurred had they been in a "real" classroom.  Students have also appeared scantily clothed or even nude.  Some have inappropriate material, purposefully or not so purposefully, in the background of their camera which could get them in trouble, like drug paraphernalia, or inappropriate language.  Being online suddenly opens up our homes to the government, in the form of teachers and school officials.

Where before a rude joke was just to a classmate privately, that joke may now be broadcast to the entire class.  And students now suddenly have new opportunities to gain online fame for making fools of their teachers or being the most outrageous troublemaker.  Maybe before the stay-at-home order, the same student would never have imagined doing these things, but now they may feel more safe or untouchable as heck, they are already at home anyway so what would a suspension matter?    

Students forced online who cause havoc will probably receive swifter and more punitive punishments, with no or abbreviated "hearings," and no ability to properly defend themselves in person, which is a distinct disadvantage.

Additionally, now there may be an undeniable electronic record of their conduct, making it easier for school administrators to punish.  Suddenly a student with a perfect record may have a suspension they have to bring up on their college applications, all because they were stupid when they got stuck at home.

All school rules continue to apply online, regardless of where the student is.  Parents should discuss with their kids how each school rule applies and work out how NOT to misspeak or break a rule.  This may mean students ensure their name is the RIGHT name, not a prank name, before logging on, that students don't make inappropriate comments during their sessions, that nothing improper appears within view of their camera and that they mute their microphones and turn off the music when attending classes online.  Students should wear proper attire, not have drug paraphernalia in their environment, or other evidence that could be misconstrued in some way (e.g. as a threat, weapon, or illegal substance, etc.) and just make sure they look at their surroundings from the view of the camera.  

Students and parents should also be mindful that other people and conversations in their home may be seen or heard during class sessions, which is not always a good thing.  

Parents should take care of their kids now, as always, yet increase their scrutiny of what their kids are doing in this "new" school environment and beware of the rampant opportunities for students to "misbehave" (in the school's eyes) in new and novel ways during their enforced home schooling. 

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website, Blog, Twitter, Youtube, Facebook

Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

READ MORE - Online Learning Opens Door For More Student Punishment If Students And Parents Are Not Careful

The Bright Side: Resolving Student Expulsion Matters During Coronavirus Could Result In Better Outcomes For Students

By Michelle Ball, California Education Attorney for Students since 1995

Was your child recommended for a school expulsion prior to being sent home indefinitely due to Coronavirus aka COVID-19?  Do they have this issue now hanging over their head indefinitely due to school shut downs?  Now may be a great time to try resolve that pending school discipline matter.

Everything has been in turmoil at schools since the Coronavirus hit, and this also includes school discipline.  One positive thing that could come out of this is that there may be months with no students being suspended or expelled and thus great school discipline records for millions of students.  Clean school discipline records are good for college applications and for students themselves, as a clean school discipline record gives a positive impression.  This IS a bright side to the current Coronavirus trauma going on.

If you have a student with a pending discipline matter, like a school expulsion, it is likely your formal expulsion hearing has been pushed back, maybe indefinitely.  

There are heavy legal questions surrounding this postponement/delay, as school expulsion hearings legally must be held within 30 schooldays and cannot be postponed even during summer vacations.  

Per California Education Code 48925(c):

"'Schoolday' means a day upon which the schools of the district are in session or weekdays during the summer recess."

The current situation with kids at home trying to access on line opportunities is similar to summer vacation, yet it is also similar to a regular school day, as on the one hand students are receiving education (schoolday) and on the other they are out of school (like summer).   What rights do parents and students have in this situation?  

The California Education Code does not have a mass emergency medical disaster section with regard to expulsion time limits, so we have to look to current codes.  If the days students are at home are considered "schooldays"  they count toward the legal time limits for pursuing discipline, and students technically should get their expulsion hearings within 30 schooldays, even during this situation. 

Regardless, if a student has a pending expulsion, and the hearing was pushed back, due to this uncertainty, now may be a great time to try to resolve any pending school discipline and negotiate a more positive expulsion outcome.

The first hurdle will be to get a hold of the people in charge.  School district administrators are presumably very burdened right now with all that is going on.

However, once they are reached, reasonable outcomes in light of the Coronavirus situation can be attempted.  Parents can try to negotiate a total dropping of the school discipline matter or a reduction in the sentence.  Starting any discipline now could be positive as students are at home anyway.  Regardless, they are still entitled to an education during expulsion and could opt to attend online options, enroll in a charter school, or their parent could even file to become their own private school during the time of the discipline (easier than you may think).

Regardless, parents can try to turn this ugly situation into a winning one, and try to resolve their pending discipline matters due to the current uncertainty.  There may be nothing to lose for the student, who could have a much more positive school discipline record in the end.

Best,

Michelle Ball

Education Law Attorney 

LAW OFFICE OF MICHELLE BALL 

717 K Street, Suite 228 

Sacramento, CA 95814 

Phone: 916-444-9064 

Email:help@edlaw4students.com 

Fax: 916-444-1209

Website: http://www.edlaw4students.com/

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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. 

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School Suspension For First Offense Is Frequently Prohibited, But Schools Continue To Ignore Legal Mandates

By Michelle Ball, California Education Attorney for Students since 1995

In 2013, the California legislature amended Education Code §48900.5, clearly specifying when a student can and cannot be suspended for a first offense, designating what offenses were excluded from this prohibition, and just what "other means of correction" may be attempted instead of suspension.  Yet, to this day, this code remains ignored and improperly applied, which means thousands of students across California are being illegally suspended in breach of §48900.5.

The bad news here is that to get these improper suspensions out of a student's records, a legal argument needs to be made to the school or district, and they don't always believe parents nor determine that §48900.5 applies.  When legally challenged on the improper imposition of a suspension in breach of §48900.5, with clear arguments being made, they may remove and expunge the wrongful suspension from the child's records.  However, removal is not always certain, and presents a hassle for parents to pursue.  Schools can still assert their right to balk the law or try to allege "danger."  It would be much easier and fairer if schools would just not suspend for first offenses as described in §48900.5.

To reiterate what §48900.5 says:

  

(a) Suspension, including supervised suspension as described in Section 48911.1, shall be imposed only when other means of correction fail to bring about proper conduct. A school district may document the other means of correction used and place that documentation in the pupil’s record, which may be accessed pursuant to Section 49069.7. However, a pupil, including an individual with exceptional needs, as defined in Section 56026, may be suspended, subject to Section 1415 of Title 20 of the United States Code, for any of the reasons enumerated in Section 48900 upon a first offense, if the principal or superintendent of schools determines that the pupil violated subdivision (a), (b), (c), (d), or (e) of Section 48900 or that the pupil’s presence causes a danger to persons.

Sections (a)-(e) of §48900 cover the following offenses (the student may be suspended on a first offense for these actions):

(a) (1) Caused, attempted to cause, or threatened to cause physical injury to another person.

(2) Willfully used force or violence upon the person of another, except in self-defense.

(b) Possessed, sold, or otherwise furnished a firearm, knife, explosive, or other dangerous object, unless, in the case of possession of an object of this type, the pupil had obtained written permission to possess the item from a certificated school employee, which is concurred in by the principal or the designee of the principal.

(c) Unlawfully possessed, used, sold, or otherwise furnished, or been under the influence of, a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind.

(d) Unlawfully offered, arranged, or negotiated to sell a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, an alcoholic beverage, or an intoxicant of any kind, and either sold, delivered, or otherwise furnished to a person another liquid, substance, or material and represented the liquid, substance, or material as a controlled substance, alcoholic beverage, or intoxicant.

(e) Committed or attempted to commit robbery or extortion.

You may recognize these are the more violent and dangerous offenses for which a student may be suspended.  Some of these also warrant a mandated recommendation for expulsion.

Regardless, if a student is not suspended under one of these subsections, and their offense is not "dangerous," they are NOT supposed to be suspended on their first offense, but should receive an alternative to suspension instead.  Examples of alternatives could be to complete a task at school, receive a detention, receive counseling, etc.  There is a long list in §48900.5(b).

What I have found is either the school officials are unaware of the requirement that alternatives to suspension be applied, or they don't care, and just keep imposing suspensions for non-violent offenses like they "always" have.  However, the amendment in 2013 to §48900.5 created a new standard that has to be met for a suspension to proceed.

Parents need to evaluate the suspensions their children are receiving, and challenge them where appropriate: where the suspension is a first offense, is not under §48900 (a)-(e) and is a non-dangerous offense.  This is the only way schools will start following the law and stop kicking our kids out of school for minor offenses.  The legislature meant what it said and the schools need to follow their clear mandate regarding first offenses.  Make sure that they do.

Best,

 

Michelle Ball

Education Law Attorney 

 

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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.

READ MORE - School Suspension For First Offense Is Frequently Prohibited, But Schools Continue To Ignore Legal Mandates