School Expulsion Hearing Evidence Q & A

By Michelle Ball, California Education Attorney for Students since 1995

Many parents envision expulsion hearings are mini-trials where their child has full rights to object and exclude things, like in regular court.  However, public school expulsion hearings, as hearings governed by administrative law (the law relating to government agencies), have different rules from regular courts.  There are some parameters for the expulsion hearing process, but what is allowed can be quite confusing, especially to a parent on their own.  Here are some basics on the evidence at expulsion hearings.

Do regular rules of "evidence" for court trials apply in school expulsion hearings?

No.

Am I entitled to all evidence the school has against my child before the hearing?  

Parents are entitled to all evidence the school will use at the hearing.  Usually the school or district will provide the evidence to the family at the suspension extension meeting, but if not, it can be requested.

How do I get the expulsion hearing evidence from the school if it was not given to me?  

Simply request it, preferably in writing and via email.

What evidence is needed to expel my child?   

The school should prove the matter with substantial evidence that the student actually committed the acts alleged and they breach the codes.

What evidence can the school submit at the hearing?

They can submit anything they gathered, including statements from students about the allegations, even if the student who gave the statement or testimony does not attend the hearing.  They can also present witnesses or testimony to support the allegations.

What is hearsay evidence for purposes of an expulsion hearing?  

In very rudimentary terms, hearsay evidence is evidence offered to prove something happened from someone not directly testifying or who was not an actual witness to what happened.  For example, sometimes schools submit statements where students write rumors- the statement and the contents are hearsay.  [Please note: hearsay is a highly complicated subject and this is not a complete discussion of hearsay or its exceptions]

What if a student did see something happen, but does not testify at an expulsion hearing?  Is their written statement hearsay?

Yes, usually.  A written statement, when the student does not present themselves for questioning is typically hearsay.  There is an exception when a hearing panel rules that a student would be "subject to an unreasonable risk of harm," were they to testify and the panel can decide to accept their written statement instead (see California Education Code 48918(i)(3)) and it then will not be considered hearsay.  

A statement from an accused person, where they admit they "did it," is considered an admission and is acceptable under a hearsay exception (see California Evidence Code section 1220).

Can a student be expelled based on hearsay alone?  

No.  This is specifically prohibited in California Education Code section 48918(f)(2).  

Why are we talking about hearsay and what does it matter to the student being expelled?

It matters because if a student did not admit the allegations, and there was only hearsay at the hearing, the expulsion may be overturned on an appeal to the county board of education.

What evidence is presented at most school hearings?  

A school or the district will usually present a packet of information, including written statements, testimony from an administrator (like the vice principal or principal) and may present an eye witness to the alleged wrong.  Districts vary in how well they conduct hearings.

What can a parent submit at an expulsion hearing?

Paper evidence, witnesses, character witnesses, letters supporting the student, pictures, videos or any other evidence they want which is relevant.  They may also submit a legal brief (paper with the law and facts) or arguments supporting the student's innocence.

What can a parent say at the hearing?

The parent or their attorney or a nonattorney advisor can usually do an opening and closing statement, and can question witnesses.  

Can a Parent be a witness?

Yes, if the parent saw the act happen, they can testify as a direct witness.  If not, a parent may be a character witness.  

Can a parent ask a school to help them force witnesses to testify at the hearing (aka subpoena them)? 

Yes.  A parent can ask the school board to issue subpoenas to witnesses who actually saw what happened, aka percipient witnesses (see California Education Code 48918(i)(1)).

If there is an evidence issue at hearing, who rules?

The person or group overseeing the proceeding (for example the expulsion panel, board of education or hearing officer) should review the question and make a ruling.

Can a parent record an expulsion hearing?

Not without permission, which is usually denied.  The school district will make an official record, with either a recording or a court reporter.

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 - School Expulsion Hearing Evidence Q & A

How Long Can A School Expulsion Go? Q & A

By Michelle Ball, California Education Attorney for Students since 1995

Many times when a public school student faces expulsion, there is confusion about what this means and how long an expulsion may continue.  Some questions and answers relevant to the length of expulsions in the public school setting, (high school or below) may be helpful to parents.

Is expulsion permanent?  

No.  There is always a listed end date in the expulsion decision.

When can a student return to school after they are expelled?

That depends on the length and type of expulsion imposed, with the maximum time limited by state law.

How long can a public school expulsion be?  

Maximum 1 year for the most heinous situations, such as selling drugs, firearm issues, sexual assault or battery, brandishing a knife and explosives (Cal Ed Code 48915(c)), sometimes called the "Big 5 Offenses."

Can a public school expulsion continue beyond the expulsion time period in the expulsion decision?

Yes.  Although the initial expulsion can only go a maximum 1 year for the worst offenses, like drug sales, if a student does not meet readmission (aka rehabilitation) terms when attempting to reenroll, the student may not be readmitted and their exclusion may continue.

What is the maximum length of expulsion for offenses that are not "Big 5 Offenses?"

Two semesters, starting when the board of education issues their decision, and sometimes starting the semester when the offense occurred.  Examples of school offenses carrying a two semester maximum term include drug possession, sexual harassment, fighting, stealing or theft, damaging school property, threats, extortion, habitual profanity, bullying, receiving stolen school or private property, possession of an imitation firearm, hazing, aiding and abetting (helping) another student to commit great bodily injury, and other offenses. (Cal Ed. Code 48900-15).

What is the minimum term of expulsion if a student is found guilty?

One semester, unless the board decides to issue a lesser punishment, such as a behavior contract.

Does the board of education have to expel a student?

Per state law, not unless it is a proven "Big 5 Offense."  Otherwise, they have discretion to offer alternative punishments as the circumstances warrant.

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 - How Long Can A School Expulsion Go? Q & A

Filing A UC or CSU Discipline Appeal Within The College: Bases For Appeal

By Michelle Ball, California Education Attorney for Students since 1995

College punishment can come swiftly and harshly, ending with a suspension or even an expulsion for minor activities.  Even in the University of California (UC) and California State University (CSU) college systems, the discipline can be unfair and result in an unjust outcome.  As such, a prompt internal (within the college itself) discipline appeal may be warranted, IF the college provides an appeal process.

Regardless, in all cases, it is extremely critical that the student prepare well for and try to get the best outcome at their first discipline hearing, so they can potentially avoid an appeal.  

If an appeal must be pursued, it will all depend on the exact college policy.

In the UC and CSU college systems, overseen by the UC Board of Regents and the California State University system, respectively, one would think that discipline policies would be uniform in all colleges under one body, such as all UCs or all CSUs.  Not exactly.

The UC system has a statewide policy, called PACAOS (Policies Applying to Campus Activities Organizations and Students) confirming there must be a campus discipline appeal process in place on college campuses, but what that process must include, is not defined.  As such, bases for an internal appeal are set campus to campus and can vary greatly.

For CSU, the state group has Executive Order 1098 (EO 1098) which covers student discipline statewide, but which does not discuss a clear internal appeal right.  Each CSU campus and their policies have to be consulted to determine what rights exist.

CSUS (California State University Sacramento), policy, for example, mentions that:

The student shall have the right of due process and appeal in matters of student discipline...

But, the appeal rights and bases are not delineated.  CSUS also has an internal grievance process which allows students to appeal if  they feel their rights were violated.

UC policies offer an internal appeal, but can vary on the bases, so it may be easiest to look at a few for comparison.  

At University of California, Davis (UCD), the policy regarding the bases for filing a legitimate appeal with UCD state as follows:

A student... [may] file a written appeal of the decision, on one or more of the following grounds: 

1. there is no substantial basis in fact to support the findings;
2. the sanction is inconsistent with the findings;
3. there was unfairness in the proceedings;
4. or there is newly discovered important evidence that was not available at the time of the hearing. 

... An appeal may be denied, granted in whole or part, or other relief may be directed where appropriate. 

The great thing about this policy, is that there are 4 potential areas for a UCD discipline appeal, including unfairness in the proceedings, a punishment that was way too harsh, and otherwise.  Students may be able to overturn or reduce punishments lodging such an appeal.  Nothing is mentioned in the UCD policies about increasing the punishment if a student appeals.

With UCLA, there is a different, much more restrictive policy for UCLA internal appeals:

If the Dean imposes a sanction of Deferred Suspension, Deferred Dismissal, Suspension, or Dismissal, the Student may appeal the sanction, to the Vice Chancellor of Student Affairs, on the grounds that the sanction assigned is substantially disproportionate to the severity of the violation.

The UCLA policy limits students to appealing only for disproportionate punishment.  It also includes this little gem, that the Vice Chancellor who receives the student's appeal:

...may impose any one or more [additional] sanctions, even though such decision may result in the imposition of more severe disciplinary action.

This means that the appeal is not only a chance for justice and reduced punishment, but also for a harsher punishment.  This is disturbing and likely stops many students from lodging an appeal.

UC Berkeley (UCB) has a different appeal policy:

An appeal must be based on newly discovered evidence that was not available at the time of the hearing, significant procedural error, or upon other evidence or arguments which, for good cause, should be considered.

This is a much broader appeal right as it covers "other evidence and arguments" without restriction.  This could mean a wide swath of appeal arguments may be considered.  UCB has a provision that the discipline can not only be lessened or reversed, but that the matter can also be sent back for a rehearing.

The UC campuses also vary largely in timelines for internal appeals and some windows are VERY short.  Students need to pay close attention and act fast.

Which public 4 year college a student attends in California will determine if there may be an internal appeal right and/or the bases which the college will consider when a student tries to overturn a wrongful college suspension or expulsion.  Students should check the policies and get their appeals timely submitted with proper documents and evidence supporting all potential appeal bases.  If a student fails to file an internal appeal per the policies, their discipline may become final.  As such, knowing the policies of the school a student is attending is key.  

Ultimately, however, remember this: solving the matter at the first discipline hearing will avoid any internal or other appeals altogether and as such, preparing that matter well, with proper evidence, witnesses and documents proving the student is innocent, can be the most important thing to 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.  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 - Filing A UC or CSU Discipline Appeal Within The College: Bases For Appeal

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

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/

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. 

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

Top 5 Parent Rights In School Expulsion Hearings

By Michelle Ball, California Education Attorney for Students since 1995

Expulsion hearings are horrific for parents due to the suddenness and shock of the situation ("expulsion- what?!"), and the lack of experience most parents have in the expulsion hearing process.  Top this off with administrators who may tell parents that, "The hearing panel will understand," (when they won't) or "You should do the hearing fast so Joe can get back to school," (when the administrators know that Joe probably will be expelled, not returned to school), and other falsehoods to lull parents into a false sense of security.  It is all very difficult to say the least.  If parents don't watch it and get educated, they may end up with their child expelled, and wonder what just happened.  

So, I thought it may be a good idea to remind parents of some of their key rights in the California public school expulsion process.

1)  The Right To An Expulsion Hearing:  This is one of the most basic rights of all (see California Education Code Section §48918(a)(1).  Many districts attempt to get parents to waive this right and sign a "stipulated expulsion" where they agree to the expulsion.  Whether this is a good idea will depend on the charges, circumstances, the child's discipline history, his/her guilt and other factors, but rule number one is don't just waive your hearing without considering everything and what the terms of the discipline proposal are.

2)  The Right To Proper Notice Of Hearing:  The District has to forward a written hearing notice 10 days prior to any expulsion hearing date per Education Code §48918(b) with certain mandated notifications included in the hearing notice.  The failure of a school district to meet this timeline can be instrumental in getting an expulsion overturned on appeal.  

3) The Right To Request And Obtain All Evidence And Documentation Pre-Hearing:  Parents need to request their child's complete educational files, as well as the school district expulsion packet early in the process.  Per Education Code §49069.7, parents have the right to all of their child's records, and per Education Code §48918(b)(5) they have a right to the expulsion records and evidence.  I have had parents tell me they did not get the evidence the school presented at hearing, or they were not received until the hearing was held.  This can be prevented by making a written request for documents early in the process.

4)  The Right To Never Have An Expulsion Proceed Based On "Hearsay" Alone:  This is a big thing, and is somewhat complex.  Attorneys have a whole year in law school on the rules of evidence, and hearsay is a very key part of these rules.  There is no way I can explain what hearsay is here, but needless to say, generally, if the student did not admit he "did it," and there are no witnesses at hearing in person who testify to what they saw (excluding an alleged sexual battery/assault victim), generally an expulsion cannot proceed, see California Education Code §48918(f)(2).  School districts break this rule frequently, with hearings where no one testifies and no witness says the student "did it" at the hearing itself.  I must caution, there are very complex rules around this, what does and does not count as "hearsay,"  the allowed process for getting "hearsay" documents admitted as "non-hearsay" etc,  but schools often mess this up.  This can also be a great reason to overturn an expulsion on appeal.

5)  The Right To Not Have Your Child Testify At The Hearing:  This is a very important right for parents, and whether a family exercises this right, will depend on the situation, and the evidence.  This right stems from the basic right to make decisions with regard to your child which every parent shares.  Whether your child should testify is VERY TRICKY TO EVALUATE and sometimes it is good for them to talk.  In other cases, it is not positive for them to speak, as the child may prove the school's case for them (e.g. it may help the school to expel them).  This is so difficult to determine, that sometimes I cannot evaluate whether a student should testify until the school has presented their case at the actual hearing itself.  

Whether a student should testify has to be evaluated matter to matter, depending on the unique facts and evidence in the case.  I list this as important here as most parents think they HAVE TO have their child speak as they are told this by school or district personnel and also at the hearing itself.  Parents may even be sneered at or invalidated if they refuse to allow their child to testify, but regardless, the parents are the ones who determine if they will allow their child to testify at an expulsion hearing.

There are many other rights in expulsion hearings, but parents should first get familiar with these five to help their children in the terrible process which school expulsion is for everyone concerned, but most particularly their child. 

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 - Top 5 Parent Rights In School Expulsion Hearings

Schools Have An Obligation To Provide Translated Documents

By Michelle Ball, California Education Attorney for Students since 1995

California is a diverse state, with many different cultures, nationalities and languages being spoken.  Residents' children, regardless of language spoken by students or their parents, have the right to attend California public schools.  Still, while non-English speaking students may attend classes (e.g. Spanish/English transition classes) which help them transition to English, their parents may remain non-English speakers.  How do they stay informed about their child's school progress, development, and any issues which might arise?

Education Code §48985  mandates that documents be translated for non-English speaking parents if pupils speak a language other than English and total more than 15% of a school's population:

"(a) If 15 percent or more of the pupils enrolled in a public school that provides instruction in kindergarten or any of grades 1 to 12, inclusive, speak a single primary language other than English, as determined from the census data submitted to the department pursuant to Section 52164 in the preceding year, all notices, reports, statements, or records sent to the parent or guardian of any such pupil by the school or school district shall, in addition to being written in English, be written in the primary language, and may be responded to either in English or the primary language."

If pupils speaking a language other than English total more than 15% of a school's population, documents must be sent to their family in English and their native language (e.g. Spanish, Cantonese, Arabic, Hmong, Russian or other language depending on the population of the school).  Such documents should include report cards, testing notices, policies, enrollment paperwork, discipline notices and many other communications to the students' families.

Education Code §51101.1 further addresses the rights of parents to translated documents

"(a) A parent or guardian’s lack of English fluency does not preclude a parent or guardian from exercising the rights guaranteed under this chapter. A school district shall take all reasonable steps to ensure that all parents and guardians of pupils who speak a language other than English are properly notified in English and in their home language, pursuant to Section 48985, of the rights and opportunities available to them pursuant to this section.

(b) Parents and guardians of English learners are entitled to participate in the education of their children pursuant to Section 51101 and as follows

...

(2) To be given any required written notification, under any applicable law, in English and the pupil’s home language pursuant to Section 48985."

I have seen non-English speaking parents' rights breached via school district failure to provide translated documents.  This has included improperly translated expulsion hearing documents, suspension forms, report cards, and other legally mandated documents.  This prevents the non-English speaking parents from being able to read and understand the documents they receive and lessens their ability to participate in their children's education.

If you know someone who is not an English speaker, be sure they know their rights to translated educational documents pursuant to state law.  We all benefit if parents are engaged in their kids' education.

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 - Schools Have An Obligation To Provide Translated Documents

One More Tool To Stop Your Child's Expulsion: No Proof Of Other Means Of Correction Or Physical Danger

By Michelle Ball, California Education Attorney for Students since 1995

With school expulsions, it can sometimes seem hopeless.  The school may be able to prove a child "did it," and isn't that it?  Not necessarily.  Schools have at least one more hurdle to jump over to expel a child in most cases (excluding the big 5 mandatory expulsion offenses): proving that other types of correction have been attempted or repeatedly failed and/or the act itself makes the child physically dangerous.

Specifically, California Education Code sections 48915 (b) and (e), require (for non-mandatory expulsion offenses) the following:

[A] decision to expel a pupil for any of those acts shall be based on a finding of one or both of the following:
(1) Other means of correction are not feasible or have repeatedly failed to bring about proper conduct.
(2) Due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.

What does this mean?  This means that the school not only has to prove the act alleged occurred, but also that other means of correction would not work, have been tried and failed, OR the act itself is so heinous that if the child accused returned to school, he/she would present a "continuing danger" to the "physical safety" of themselves or others.  

Other means of correction could be something like the following:

1)  Behavior contract
2)  Counseling
3)  Education
4)  Service at school or in the community
5)  Suspension itself
6)  A sit-down lecture/talk

...or practically anything that can be imagined to address the alleged offense. 

If the allegation is that correction has already been tried by the school but repeatedly failed, a close inquiry of the prior correction attempted should be made as far as relevance to the current situation.  If a kid is in trouble for theft- did he have prior theft corrective actions or not?  

With the physically dangerous branch of the inquiry, the act must be looked at to see if the action makes the child physically dangerous to others.  So, if the student were in a fight, brought a knife, put something untoward in another person's drink, made written or other threats, etc.  the school would use this to allege the student would be a physical threat were he/she to return to school.  

However, if the student is accused of something more minor, such as taking something, swearing repeatedly, or other act which shows no future physical threat, a parent can argue the student will not present a physical threat were he to return.

I frequently see this proof requirement ignored by schools with no proof of anything at hearing and a summary statement in the school documents.  However, these are legal requirements.  If one of these cannot be proven, even if the underlying offense can be, the student cannot be expelled (in the non-mandatory expulsion categories).

Arguments on these matters should be made at the hearing, and likely will need to be made on appeal to the local County Board of Education if the school expulsion panel/board do not seem to understand the arguments or fail in their proof.  Often these questions are glossed over and really not proven in any way.  This opens a door for parents to use this to their child's advantage and maybe to stop or reverse the expulsion. 

Just one more weapon to arm yourself with when preparing for expulsion war.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
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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.

READ MORE - One More Tool To Stop Your Child's Expulsion: No Proof Of Other Means Of Correction Or Physical Danger