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

Parents Have The Right To Review Or Obtain Copies Of Their Child's School Records From Public or Private Schools

By Michelle Ball, California Education Attorney for Students since 1995

School records created by a high school, elementary school, private school, or school district, can loom as an unknown for many parents.  Parents often don't even think about what may be in these files.  One way to debunk the mystery of what is being documented on your child is to make a written request for the education records.

Per California Education Code Section 49069.7 (previously 49069, but renumbered as of 1/1/2020), a parent has an absolute right to access their child's records.  This right transfers to a student when they turn 18.

Section 49069.7 states as follows:

Parents of currently enrolled or former pupils have an absolute right to access to any and all pupil records related to their children that are maintained by school districts or private schools.  The editing or withholding of any of those records, except as provided for in this chapter, is prohibited.

What this means is that parents of students of all school levels may review, inspect, and request copies of records concerning their children which the school maintains.  The definition of "maintains" is a term of art, but it roughly means documents the school must or does keep, which are not personal notes [see also 34 Code of Federal Regulations section 99.3].  Access or copies of the records must be provided within 5 business days of any valid request.

This code also directs districts to develop procedures for parents to obtain student records which  should be outlined in school board policies. 

Schools can charge a per page copy fee for any records provided, but cannot charge for the time of the staff gathering the records.  

Parents may want to request their child's records in writing periodically, quoting any relevant board policy or Education Code §49069.7.  

Access to records at public schools should be provided within 5 business days.  Private school timelines are not clearly outlined in section 49069.7, but the records still must be provided timely. 

You never know what may be in your child's school records.  Most families will not find anything untoward.  Sadly, however, I have seen some parents shocked at just what was contained in their child's files, and thereafter needing to pursue a records correction.  

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 6/8/11, updated 11/28/17 and 1/7/20

READ MORE - Parents Have The Right To Review Or Obtain Copies Of Their Child's School Records From Public or Private Schools

How To Appeal A California School Suspension When Your Child Did Not Do It

By Michelle Ball, California Education Attorney for Students since 1995

The phone rings- and it's your kid's school.  First thoughts: "Oh no, is something wrong?  Is my child hurt?"  When you answer, you hear:  "Come to the school as Johnny has done wrong and has to go home."  He was suspended.  The facts of why are abbreviated and you are seriously confused.  The drive to school is strained and when you arrive, you immediately believe what the school administrator says Johnny did is true as he is a "respectable school official."  [mistake number one]  Meanwhile Johnny sits with his head down in the corner, silent [silence here may actually be positive].  You sign the suspension form [mistake number two] and take Johnny home and maybe punish him.  Eventually you review the suspension form and find that it says Johnny did something that he did NOT DO, or find he was NOT involved in the matter alleged.  Horror sets in as you realize Johnny's college chances are now potentially lessened and he is labelled a troublemaker.  What can you do?  APPEAL!

There is no code section mandating a suspension appeal in California.  For this reason, parents who call the school or show up asking to "appeal" a suspension are met with statements such as "You can't appeal," or "There is no appeal process."  Yet, we all know that even when there is no "formal" appeal, there is always a way to try to get something overturned if you talk to the right people.

In some school districts, there are actual suspension appeal policies and even a form sometimes to complete, but this is not the norm.  If there is a policy and form, these should be completed fully and WRITTEN evidence attached proving all points.  If there is no form (most likely situation), that does not mean parents are out of luck.  In that case, parents can still file a suspension appeal whether authorized or not.  This would be done by submitting written arguments with written proof to the Principal, and then moving up the line to the Superintendent's office personnel and to the Superintendent if possible.  

Pursuing a suspension appeal could involve the following steps :

1)  Obtain the relevant Education Codes/Board policies (usually found online) that are cited in the suspension form as being breached and read them to see how they apply or don't apply.  Review other education codes relevant to suspension (such as Education Codes §§ 48900-48929) to understand how these things work generally.

2)  Obtain a copy of any/all evidence the school has, such as witness statements, and your own child's statements.  Sometimes schools don't turn these over to parents and legal intervention may be needed to clarify that these documents ARE student records and need to be coughed up.  Unfortunately, California Education Code (Ed §49069) allows them 5 business days to provide them, but you can plead for these sooner due to the situation.

3)  Develop written documentation on the matter proving your arguments.  This can be in the form of sworn declarations of the student or their friends who witnessed the situation (you would need to contact those students directly).  Even email from a teacher on the matter can be evidence.

4) Draft a very well written, truthful, professional document with an outline of the facts from your viewpoint, the laws/policies that apply, and with actual arguments why these don't or should not apply to your child.  State what you want- the student to be returned to school and the matter to be rescinded and/or expunged.  Note: it is inadvisable in the document to include personal attacks or name calling.  

5)  Some Districts actually allow a student to return to school while a suspension appeal is pending and this also could be explored if available (this is not the norm).

Everything should be in writing and submitted to the relevant school officials, asking for a prompt meeting.  It is usually a good idea to provide the letter in advance of the meeting so the personnel can review it and understand the issues before you arrive.

If this fails, you can pursue other alternatives to attempt to correct the record, such as inserting your statement about the matter into the student's records or pursuing a formal records correction request.

Who knows, if you try, maybe your child's suspension will be reversed.  The truth is that administrators assume kids are guilty just because someone says they are, and parents must challenge them when they are wrong.  It will take a lot of intensive work to do it....  but little Johnny and his future are worth it!

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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 - How To Appeal A California School Suspension When Your Child Did Not Do It

Corporal Punishment: Intentionally Causing Physical Pain To A Student Is Prohibited in California

By Michelle Ball, California Education Attorney for Students since 1995

School staff willfully inflicting physical pain to students is considered corporal punishment and prohibited in California unless certain exceptions exist.  As such, hitting, pulling hair, pinching, kicking, and other forms of physically painful contact with a student, usually are unacceptable and illegal.

In California Education Code section 49001, "Corporal Punishment" is defined as: "willful infliction of, or willfully causing the infliction of, physical pain on a pupil."  This means that any PHYSICAL PAIN caused intentionally to a student, by a person employed or engaged by a school, is not okay.  Would purposefully slamming a student into a wall, spanking a student, slapping their hand with a ruler, and/or lifting a student out of a pool by their hair be considered "corporal punishment?"  To determine this, ask yourself: was physical pain caused to the student?  Was the physical pain intentionally caused by the school representative?  If the answer is yes, the conduct could constitute prohibited corporal punishment under section 49001 so long as it does not fit under an exception.

Education Code section 49001 lists the exceptions to corporal punishment as follows:

"An amount of force that is reasonable and necessary for a person ... to quell a disturbance threatening physical injury to persons or damage to property, for purpose of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil is not ... corporal punishment.  "

If a student were pulled by their hair to prevent drowning, knocked into a wall in an attempt to obtain a gun, or hurt when the staff member was trying to stop them from being punched, causing physical pain might not be considered prohibited under the circumstances.  But we can all see how that is different from going after a kid to cause them pain with no legitimate reason.  If there were harm caused in a justified situation, the only question then would be, was the physical pain caused "reasonable and necessary?"  That may be a matter of opinion as even in "self-defense," staff can go to far.

If parents encounter what they believe to be intentionally caused physical pain and/or harm by a teacher or other school representative, they may want to file a personnel and/or other type of complaint to ensure the person involved is corrected and the matter resolved.  Otherwise, the staff member could continue their improper conduct with even more dire consequences the next time.

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/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

[please like my office on Facebook, subscribe via twitter and email, and check out my videos on Youtube!]

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.

originally published 5/16/2011, updated 4/8/2019

READ MORE - Corporal Punishment: Intentionally Causing Physical Pain To A Student Is Prohibited in California

School Discipline For Harassing A Witness In A School Matter

By Michelle Ball, California Education Attorney for Students since 1995

Can a student say what they want about witnesses who report a problem at school?  What about statements which may intimidate that student: comments such as "nark," "snitch," or other modern equivalent?   Intimidating a witness is strictly prohibited and could result in suspension or expulsion for the student uttering such statements.

Per Education Code section 48900(o) witnesses to a school discipline matter who come forward cannot be threatened, harassed, or intimidated because they are, or were, witnesses.  Specifically, this section states that a student can be suspended or expelled if a pupil:

Harassed, threatened, or intimidated a pupil who is a complaining witness or a witness in a school disciplinary proceeding for purposes of either preventing that pupil from being a witness or retaliating against that pupil for being a witness, or both.

This can lead to a tricky situation if a student is trying to gather evidence to defend himself in a pending expulsion matter.  For, what if they call a friend who was a "witness" against them to ask about their testimony, or question that person on what they saw (e.g. for their defense)?  How may this be perceived?  Chances are the "witness" may feel pressured, upset, or even threatened merely by a phone call from someone they "told" on.  As such, contacting witnesses is a dangerous activity for an accused student.  

To complicate matters, often the identity of the complaining witnesses are not disclosed to the accused student, so when they think they are calling a "friend" for help, they may actually be calling a witness in the matter against them without knowing it!

Tricky.

If a student breaches §48900(o) or is even perceived as having breached it via contact with a witness, they may be charged under this section with a violation and disciplined.

What if students not accused of a wrong go on social media (Twitter, Facebook, etc.), or just talk amongst themselves, about how "bad" another student who "told" is and/or make threats to beat them up?  This could land the students talking in hot water with the school or other authorities.  See the recent reports of arrests of students threatening a rape victim in Ohio when their rapist friends were convicted.

The bottom line is that if someone provides information to the school administration or others about a discipline matter, they are not to be threatened or intimidated.  However, what is a "threat" or "intimidating" is sometimes a vague matter at best.  Tread lightly!

Best,

Michelle Ball

Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Facebook: https://www.facebook.com/pages/Law-Office-of-Michelle-Ball/191273330901857

Please see my full 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 - School Discipline For Harassing A Witness In A School Matter

California School Suspensions for Disruption or Defiance- An Everyday Occurrence

By Michelle Ball, California Education Attorney for Students since 1995

One of the vaguest and most troublesome sections of the California Education Code for public school students is the portion which allows schools to suspend, or even expel, students for disruption or defiance.  The problem with this is that the code can be (and is) applied to practically every type of behavior which brings extra work or difficulty to the school staff (what doesn't?).  Parents need to know what is going on when they receive a call saying their child is being suspended for disruption or defiance.

Under section 48900(k) of the Education Code, a child may be punished if they:

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.

Now, isn't that clear?

This is the "catch-all" discipline section of the Education Code.  It catches almost all of student conduct which a school wants to punish not covered by other code sections.  It really gives school officials a green light to punish, sometimes for the most minor infractions imaginable.

For example, I have seen students suspended when an investigation had to be conducted by administrators.  Now, the students were not punished for the "something" someone allegedly did, but because administrators were bothered and had to do an "unusual" activity- conduct an investigation.  Well, if that were the standard, there should be non-stop suspensions as when aren't administrators bothered by students on an hourly basis? And, isn't conducting investigations part of what administrators do?  Why punish the students for something predictable like investigating an alleged situation?  This should not be a basis for suspension.

I have also seen students punished for getting a drink of water during their physical education class.  Apparently this was "defiant," to take a drink in clear visibility of the teacher (who was across the field while the student was near a water fountain) without permission.  Need I say more?

Another one which comes to mind:  students have been punished for WATCHING a fight.  Now, as far as I know, watching a fight is not punishable, even under THIS section, but needless to say Districts can sometimes stretch their authority to attempt to cover just standing there and looking!

Now of course, it really is up to each individual school as far as HOW they apply this code.  For example, one school may rarely have suspensions for disruption or defiance.  Others issue these hourly.  It all depends on the personnel in charge.

When you are called in to be told your son or daughter is being suspended from a California public school for disruption or defiance, know that often your logical arguments showing there was no disruption or willful defiance may fall on deaf ears.  The next step is usually to follow the suspension appeal process (if there is one), and/or pursue some other form of potential remedy such as filing a records correction request after the fact.

Best of luck out there.

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Youtube: http://www.youtube.com/user/EdLaw4Students

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. 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 - California School Suspensions for Disruption or Defiance- An Everyday Occurrence