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Wednesday, January 31, 2018

Student Electronic Posts Online (In Public Or Private Groups, Chats, And Texts) Are Not Really Private And May Bring Punishment

By Michelle Ball, California Education Attorney for Students since 1995

Students frequently post things online, make snarky comments to friends, and feel protected posting in "private" online forums, such as Snapchat, Facebook, Twitter, Instagram or otherwise. However, these posts can come back to haunt them when they are called in and suspended or placed up for expulsion. Even great kids can post something wrong sometime--and "get away with it," but how long can their luck last? For some- the answer is not long enough.

In recent months, I have seen more and more kids up for expulsion or suspension for posts or comments in electronic media. This is really disturbing as some of the things I see students being punished for really do not support school discipline. Schools also seem to now be lumping student groups together for punishment, rather than looking at individual culpability. Staff are choosing to punish all student members of a private group where posts were made regardless of whether they actually committed a suspendable or expellable act themselves. This is disturbing to say the least, for students and families across California.

So, I thought a review would be helpful so parents can review this with their kids prior to it being "too late."

The California Education Code now extends jurisdiction for student acts far beyond the school doors and the school day. This really began in full force when the bullying discipline rules were developed, as outlined in section 48900(r). These rules allow punishment for bullying activities, including "electronic acts." This punishment may be okay if the traditional rules of jurisdiction applied limiting schools in the scope of their punishment to student acts going from/to school, at school or school events, etc. which has previously been a limiting factor.

However, the legislature now allows electronic acts to support school punishment for bullying, intimidation, harassment, etc and define "electronic act" (Ed 48900(r)(2)(a)) as:

"“Electronic act” means the creation or transmission originated on or off the schoolsite, by means of an electronic device, including, but not limited to, a telephone, wireless telephone, or other wireless communication device, computer, or pager, of a communication..." [underline added]

Well, this has opened the floodgates to jurisdiction, as now schools can reach internet or phone posts at home, on weekends, or any other time posted. This coupled with schools labeling all negative comments on line as "bullying," "intimidation" or "harassment," when they are negative about a group, person, or school staff member, even if private or only told to a small group of students, has resulted in a boom of student punishments. Parents, who have never before encountered the school discipline machine are being called and told that what their child did online was bullying and they are out. With the limited investigations being performed, this can be fast and terrifying for student and parent alike.

Some examples of what schools are punishing students for nowadays (some valid, some invalid) include:

1) Posts involving criticism of students or staff.
2) Posts discussing acts that are hypothetical (e.g. harming a student with no real intent).
3) Jokes or funny pictures.
4) Posts with weapons and/or threatening someone.
5) Comments about racial groups, disabled students, or just students in general whether actually bullying them or not
6)  Comments about the opposite sex and sexual matters
7)  Anything the school sees as "negative" and can squeeze into the bullying, harassment, intimidation, etc. category
8) So many other things----

Schools will also use any data gleaned to develop "reasonable suspicion" to then investigate a student for e.g. drug sales, or other inappropriate activities.

Parents of kids who made an offhand comment on a private chat,or otherwise, are now faced with their children being suspended or even expelled for their comments or jokes. The executioner- the school- doesn't really care about First Amendment rights, but rather care about getting any perceived threat out so they can cover themselves.

These rules and their application to everything people say on line if comments somehow relate to the school setting or someone who is involved with the schools, chills free speech. I imagine someday, some large civil rights group may try to challenge the application of these policies to try to limit them, but for now, we are faced with having to stop our kids from posting anything that anyone under the sun could misinterpret as offensive, harassing, bullying, intimidating, inappropriate, discussing race, sexual relations, or otherwise being interpreted as wrong. How are kids to do this? It can be tough to not make a 5 second offhand comment online which later someone says was inappropriate.

And, one large rule to remember here: NO ELECTRONIC POST, PICTURE, OR PRIVATE GROUP IS REALLY PRIVATE. If a student posts something privately and one other student or parent reports it- it is no longer private. Even in Snapchat where supposedly pictures are gone forever- people take screenshots of negative posts and turn them in to the schools frequently.

Parents, I hate to be the bearer of bad news, and I don't agree with the long arm of the schools now in place. However, for now, parents, please discuss this speech-chilling situation with your kids and advise them to be cautious in what they post, and perhaps, to ask themselves prior to posting or joining a group where inappropriate comments are made: "If my school principal saw this post/group what would he/she say?"

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

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

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

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Tuesday, January 17, 2017

Cyber Sexual Bullying: One More Reason To Boot Your Kids Out Of School

By Michelle Ball, California Education Attorney for Students since 1995

Cyber sexual bullying is now a suspendable or expellable offense in California schools. Bullying already is an expellable offense, but apparently the legislature did not think "bullying" alone was broad enough. As such, the legislature chose to add a new offense to the ever growing list of things a student may do wrong. Now students may not bully and also use or reference sexually explicit electronic communications, which are covered by this new subcategory of bullying.

California Education Code §48900(r)(2)(iii) states:

"...“cyber sexual bullying” means the dissemination of, or the solicitation or incitement to disseminate, a photograph or other visual recording by a pupil to another pupil or to school personnel by means of an electronic act that has or can be reasonably predicted to have one or more of the effects described in [the Bullying section]. A photograph or other visual recording, as described above, shall include the depiction of a nude, semi-nude, or sexually explicit photograph or other visual recording of a minor where the minor is identifiable from the photograph, visual recording, or other electronic act.

(II) For purposes of this clause, “cyber sexual bullying” does not include a depiction, portrayal, or image that has any serious literary, artistic, educational, political, or scientific value or that involves athletic events or school-sanctioned activities." [bracketed material added]

An act of cyber sexual bullying must be "bullying" and also sexual in nature as defined above.

It is interesting that "incitement to disseminate" is an offense covered under this subsection. This could mean a student who did not send or take an improper picture, but rather only "incited" someone to send or take it, could also potentially be guilty of an offense. This sexual bullying can involve "sexting," where nude photographs of students are shared, presumably by others who are not authorized to share them.

When Governor Brown signed this into law, a press release explained:

"Sexual bullying is a form of bullying commonly facing teenagers. It is a behavior that can include harassing an individual or others through comments and actions that are sexual in nature. Furthermore, sexual bullying can occur in person or online. The act of sexting, where sexual, nude or semi-nude images are exchanged electronically, has become a recent occurrence in the lives of young people, and can be a major form of sexual bullying, or cyber sexual bullying. Approximately 20 percent of teenage boys and girls have sent a sext message, according to the American Academy of Pediatrics."

In recent years, the long arm of the schools frequently attempts to reach acts outside school grounds, activities and hours, particularly with bullying. It used to be that acts on the weekend stayed on the weekend. However, if matters come into the school and cause a bullying environment, even if not intended to do so, it is possible the schools may try to punish the offending student(s) regardless of where the offending act(s) occurred. Students beware.

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

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!]

Monday, January 11, 2016

When A Bullied Student Becomes A Target For School Discipline

By Michelle Ball, California Education Attorney for Students since 1995

Over the years, I have heard many terrible stories, but some of the saddest are when a student who is a victim is disciplined, while the bully escapes punishment. Sometimes it is very clear that the victim did nothing but is being lied about by the bully. Other times, the victim is punished for fighting back and breaking rules in their response to the bully. Either way, parents and students need to act before a situation turns against them.

It may seem logical to assume that a school will act on reports of targeting a student. Bullying and its dramatic negative impact to students is everywhere and "bullying" itself is the new buzz word in education. It seems, at least in the media, that once someone alleges they were bullied, magic happens. In the real world, this is not always the case.

Schools are legally obligated to do something when a staff member observes and/or receives a report of bullying. However, we all know that just because someone is supposed to do something does not mean they will. Baffled parents sit confused asking why there is a law if no one will follow it? This is the same question as "Why do people steal?"-- because there are people who don't know or care what the law says. There are also schools and school districts whose staff don't know their legal obligations to act and/or don't care.

I am confused when a school fails to act despite knowledge of bullying, as it is easy for schools to jump in. Yet, many schools blow off student reports as just "gossip" or false. Being ignored, a student may develop the feeling that he/she has no option but to defend themselves (and in fact may be right). The bullied student may then be caught and punished by the school if they factually DO break a rule e.g. by hitting the bully in the face. This punishment of the bullied student, while legally allowed, ignores the fact that due to the school's utter lack of correction, the student felt they had (or did have) no other option than to get pummeled by the bully.

A Hypothetical Example Of Bullying And A Lack Of Follow Through

Here is what this type of situation could look like: Student B (Bully) tells Student V (Victim) he will beat Student V up. Student V worries but does not report the statement. Student B then starts calling Student V names and threatening Student V daily. Student V tells his teacher and the teacher says she will talk to Student B. Student B stops for about a week. Then Student B (plus Student B's friends) start up again, and Student B corners Student V in the bathroom, telling Student V he should not have gotten Student B in trouble. Student B then threatens to beat up Student V if he tells again. Student V tells his teacher, who tells Student V that Student B was handled and is a good student. In other words she does not believe Student V. The teacher never reports Student B to the office, or reports but does not follow through.

Student V, after continuing derogatory comments from Student B, and being pinched, poked and maybe hurt some other way by Student B and his friends, goes to the office. Student V tells the secretary, who says she/he will tell the Vice Principal. The VP, if we are lucky, gets a note or voicemail stating there is an issue. However, often the VP will not do anything or will forget about it, and may not tell Student V's parents.

Student V meanwhile is continuing to be hurt and intimidated and his school work and grades suffer. His parents think it is his computer usage and take his computer away. Student V is embarrassed and does not tell his parents the truth. Student V goes to the office again as Student B is now threatening to kill him daily and throwing sharp objects at him. Students C, D, E, F, and G may also now be involved in targeting Student V. Student V again goes to the office and tells the secretary. Things continue unabated.

Student V tries to "stick it out" and "be tough." He knows the school won't help him, and he knows that he needs to protect himself or he could be seriously injured. So, he brings a knife to school, or makes a plan to hurt the students so they will leave him alone. Maybe he writes a list of students he does not like. Student V then is caught with the knife or alleged to have made a "hit list" about students, and is suspended and placed up for expulsion. His family finally finds out about the bullying, now too late, and brings this up as a defense. The school ignores the parents, explaining it does not matter as Student V broke the weapons/threat rules. As Student V factually did break rules, this gives the school the right to discipline him. Sadly, Student V is expelled while Student B remains in school.

This may sound far-fetched but it is not. I have seen this scenario unfold, often after the student victim is already up for expulsion, which the family is left to battle.

Had the bullying been handled effectively in the beginning, nothing would have escalated. Student V would never have been in the position to be suspended or expelled as he would not have had to hatch a plan to defend himself. Had the teacher believed Student V, sent Student B to the office to be suspended and followed up with protection for Student V, the situation may have been solved. Had the secretary or VP followed up and done something effective, such as suspend or expel Student B and his friends, Student V might have had a different future.

If a child reports bullying, parents should follow up in writing with the school to ensure something is done. A plan needs to be developed with school staff to address the situation fully. Parents thereafter need to ensure the school does what it promises and that no new incidents are occurring.

Don't wait until the student victim has to resort to their own plans of resolution, which often means rule-breaking and punishment. Suspension or expulsion may haunt the student for years to come, including when applying to college.

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

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

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

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Tuesday, May 5, 2015

When In Doubt Go To The School District

By Michelle Ball, California Education Attorney for Students since 1995

Are you frustrated that your school's Principal or Vice Principal are not listening nor acting adequately on your school complaints? Are you being given a blank stare when you sit in the office telling your tale? Is your child's problem not being resolved? When problems are not resolved at the school site, don't forget the school district.

I have sat and consoled many parents who have complained to their child's principal or other school staff about issues, such as continual bullying, targeting by a teacher, a dangerous situation on campus, issues with a student group, etc. to no avail. The parents complain of getting nowhere, being treated like idiots or bothersome pests, and know their issues are not being taken seriously. They are at a loss.

Often these parents do not know nor think to involve their school district. I think some parents believe that their school district may reflect the same attitude as their school or that the district won't give the parents any help. It is possible no help will be forthcoming, but not always the case. Often, a school district will try to help and they can even order the school to take action.

Yes, I do hear from some parents that a district referred them right back to the school or that the district did not get back to them, but generally, districts are separated just enough from their schools to be somewhat objective in hearing parent complaints.

So, if everything is not immediately roses at the school and you can't get anywhere, what do you do? Here are some suggestions to get attention from the district (and maybe the school):

1) Put your issues in writing, supporting them with specific facts and documentation (no wild unsupported accusations please), perhaps in the form of a factual summary and other attachments proving your point.

2) Submit it to the District accompanied by a list of what you want to be done to resolve the situation.

3) Submit in writing and cc via email.

4) Request a meeting with the district staff regarding your issues and help with resolution.

5) Follow up on your submission with a call if you don't hear back in a reasonable time.

6) Politely persist until you get a meeting with the district or feel the matter has been adequately handled.

You can also formalize your complaints to the district via internal complaint forms, and can even submit personnel complaints on the school staff (e.g. Principal or others). Be mindful, however, that if you are deciding whether to file an internal complaint (with district/school), or to file with the United States Department of Education (USDOE), California Department of Education (CDE) or even your local grand jury, there may be limitations on whether those bodies will accept a complaint if a formal complaint is already proceeding at a district. In other words, agencies don't like to waste resources and accept a filing if another agency is already investigating.

If you get nowhere, or depending on how you want to proceed, you could also opt to get attention by having legal counsel send something in writing and/or bringing an attorney to a meeting (with advance notice). If things ramp up when you contact a district, they will usually really ramp up when you bring in legal counsel.

Now, I won't say that all districts you contact will do the right thing, will do what you want, or otherwise, but often parents who are not getting anywhere with the school administration will make some headway by involving the higher ups at their local school district, as these folks have the power to override school staff to get the job done and the matter handled.

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
Email: help@edlaw4students.com

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!]

Wednesday, October 16, 2013

Bullying And Cyberbullying - You Must Report It To The School

By Michelle Ball, California Education Attorney for Students since 1995

Bullying at school is certainly in the news. Just this week another twelve year old leapt to her death after allegedly being bullied for a year. This is a tragedy. Will the school district be liable? We shall see.

The fact bullying and cyberbullying occur alone are not enough for school districts to be liable. Rather, a school or district official who has the power to address bullying must have actual knowledge of the bullying and/or harassment which is occurring. If bullying goes on but no one tells an administrator who can do something about it, or no official witnesses the bullying, liability may not lie (see the U. S. Supreme Court cases Davis v. Monroe County Board of Education and Gebser v. Lago Vista Independent School District).

Bullying can have dreadful effects. It can lead to suicide, murder, isolation, failures in school and other negative impacts. As families may not have access to bullies, the schools and police often must be involved for bullies to stop. However this presumes parents KNOW about the bullying in the first place. This may not be the case.

A bullied student may not tell their parents they are being targeted due to embarrassment or thinking they can handle it on their own. They may even believe they deserve the treatment due to a diminishing self-esteem. They may feel worthless and trapped in a cycle which will never end. Do you remember being a teenager? Didn't it seem like childhood would never end and that you knew and could handle everything yourself? That your parents knew less than you? Today's youth go through the same thing. Because of this, parents MUST get nosy and investigate what is going on in their child's life, on-line and off. Internet sites like Facebook, Twitter, Instagram, etc. need to be reviewed to ensure nothing untoward is happening. Cell phones need to be checked. Inquiries need to be made before it is too late.

Once bullying is discovered, it needs to promptly be reported to school officials via the district/school official bullying process (see California Education Code §234.1 which requires districts to have a complaint and investigation process). Once a report is made, it then needs to be followed up on to ensure that something effective is done.

Schools can investigate situations, interview kids and potential witnesses, impose in-house or out of school suspensions, involuntary transfers and even expulsions depending on what they find.

In most situations, reports of bullying will result in action by the school or school district. If an inadequate or no response issues, parents need to seek legal help to solve their issues before the bullying leads to tragedy. Parents, please get into your kids' lives, before they end up as headlines in the daily news due to bullying of which you were never aware.

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
Email: help@edlaw4students.com