14 Steps To Attack A School Suspension

By Michelle Ball, California Education Attorney for Students since 1995

 

What does a parent do when their child, a stellar wonderful student, gets a suspension, which may tarnish their education records forever?  Attack it and try to get it overturned of course.

A student suspension is a permanent black mark in a school record, which will lurk in the background waiting to communicate negative about the student.  It will come up on college applications, depending on the college, and can harm a student in their future prospects.  How much is unclear.  What is clear is that suspensions are a big deal and should be addressed, not ignored, if possible.

A parent should immediately take action if a student is suspended:

1)  Meet with the school to get the school's version of what happened.  Take thorough notes.

2)  It is not a great idea for parents to  question their child in the school office about what happened as this may give the school evidence.

3)  Get a copy of the suspension form at this meeting if possible.  Sometimes schools don't even provide a written suspension form (in breach of the law), so if a parent does not have the suspension form, they should get it ASAP.

4) Review the meeting notes and the suspension form thoroughly.

5)  Meet with the student in private and get his or her version of what happened.

6) Compare the suspension form and what it says to what the student says to determine what  may be accurate on the suspension form, and what is not.

7)  Request the witness statements and other evidence of or related to the suspension.  These are student records, and must be provided, although schools often will balk at requests for these (see Ed Code 49069.7).

8)  Review these.

9) Review the school policies on suspensions and the practices and procedures related to them.

10)  Figure out what is wrong with the suspension- does it not meet school code, should the student have received an alternate punishment (see my blog on this)?  Even if the suspension is still appropriate, there can be other arguments to attack it, such as the student's lack of discipline history, the stories of the witnesses conflict, etc.

11)  After a parent gets all arguments together, a written document should be drafted to the school outlining the support for the student, arguments, and what is desired: the student returned to school now (if still out), and the suspension rescinded (reversed) and expunged.

12)  Forward to the school and request a meeting with someone who has the power to overturn the suspension, such as the principal.

13)  Meet with the school and use good manners, firm evidence and positive arguments to get an agreement to get rid of the student suspension now, or at a date certain in the future, such as at the end of the current semester or school year.

14) Review the student records to ensure the suspension is not noted anywhere.

Do it! 

If parents take action, they can potentially get suspensions out of student records and positively influence the student's future for years to come.

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, LinkedIn

 

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 - 14 Steps To Attack A School Suspension

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?

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 

 

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

In House School Suspensions- What Rights Do Parents And Students Have?

By Michelle Ball, California Education Attorney for Students since 1995

There is a lot of focus in schools on the "big" discipline: out of school suspension (typically just called "suspension") and expulsion, and how to confront and handle these, but what about an In House School Suspension (IHSS aka IHS:In House Suspension or ISS:In School Suspension)?  What protections apply to a student put on an In House School Suspension?  

First, what is an IHSS?  An IHSS (referred to in the state statutes as "supervised suspension"- see California Education Code §48911.1) is where a student commits a suspendable act, but is allowed to physically remain on the school campus during the suspension time.  The student cannot attend their regular classes during the IHSS and it can extend from one period up to 5 days.

Parents often overlook IHSS as "nothing to worry about" as the child gets to stay at school and it does not impact anyone's schedules.  But, these "little" suspensions later need to be mentioned as a form of suspension on various college applications, depending on the college one may attend.  

Parents have rights, even with IHSS's.  Here are some rights that most parents don't even know they have:

1)  Right to telephone or in person notification st the time the the IHSS starts, California Education Code §48911.1(d)

2)  Right to written notice of the IHSS if it will go longer than one period (although the code does not say when), California Education Code §48911.1(d)

3)  Right to have an IHSS imposed only when "other means of correction" fail to bring about proper conduct.  However, IHSS would not be allowed if the student presents an "imminent danger or threat to the campus, pupils, or staff," or if an expulsion is being pursued, California Education Code §§48900.5; 48911.1(a).

4)  Right to a pre-suspension "hearing" where the student is presented with the evidence, and has the ability to defend themselves, California Education Code §48911(b).

5)  Right to be notified of the "other means of correction" attempted during the suspension "hearing," California Education Code §§48900.5, 48911(b).

6) Right to ask teachers for work, and the teachers to provide work.  If there is no work from the teachers- other work will be assigned, California Education Code §48911.1 (c)(4).

7)  Right during the IHSS to have access to "appropriate counseling services," California Education Code §48911(c)(2).

8) If the IHSS was assigned by a teacher, the parents should be contacted by the teacher to set up a conference about the suspension, California Education Code §48910(a).

9)  Right to appeal the IHSS if for a first time offense, and other means of correction were not applied (within certain parameters- not all are appealable on the first time), California Education Code §48900.5.

IHSS are not nothing.  They are lower gradients than regular suspensions, and far better than expulsions, however, they are still a black mark on a student's record and time that a student will be out of their regular classes, which may be significant if they have finals coming up or miss difficult subjects.  Parents should be aware of these and what they mean before they are thrust on their kids so they can act properly when they get that dreaded call at 1:00 on a Friday afternoon.

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 - In House School Suspensions- What Rights Do Parents And Students Have?